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LA/A
F
(l^dH^^y^' ^f
juue Ajb*« < c*
"CAPE TIMS" LAW REPORTS.
^psj
K UBfflS =
A. REOORD **->'
OF
EVERY MATTER DISPOSED OF IN THE SUPREME COURT,
DURING THE YEAR, 1891.
tDlTBD B?
J. D. 8HEIL,
OF THK INNER TEMPLE, BARRI8TER-AT-LAW, AND ADVOCATE OF THE
SUPREME COURT.
VOL. I,
(1891).
021
CAPE TOWN :
PRINTB1> ANt> PUBLISHED BY MURRAY * ST. LEGER, ST. GEORGE'S STREET.
1802.
ERRATA.
In the Estate of the late J. P. Tiran — page 98 — Omit in 6th line of head — note, and in first line of
judgment (p. 99) the words the w>dow and.
In seventa line from bottom of page 98 read daughter for widow.
At page 153 in 18th line from top (second line of judgment) read appeal for fee.
TABLE OF CASES.
VOL. I.
PAGE
Abrahamse, Dirk, Petition of ... ... 101
Abrahamae v. Abrahamse... ... 118, 122, 143
Ackermann, J. H. B., in the Insolvent
Estate of ... ... ... ... 69
Adkins, H. J., in re ... ... ... 124
Adshade, Petition of ... ... 20, 46
Albert District G. M. Go. (in liquidation), in
re 199,265
Albion Masonic Hall Go. (Limited), xn
re 182,209,253
Alexander, A., in re ... ... ... 2
Aiing v. The Bellevue Syndicate ... ... 326
Allwright, B., in re ... ... ... 19
Amsterdam, C, in re ... ... ... 19
Anderson & Mnrison v. The Colonial Gov-
ernment ... ... ... ... 259
Anderson 6 Mnrison v. The Omaruru G. M.
v/O. ... ... ... ... ... Oo
Arendse, J., in re
Armour v. Murray A St. Leger
Arthur, M., in re ... ... ... 124,
Askew v. Moller ...
Atkinson v. The Registrar of Deeds
Atmore, Elizabeth, Petition of
Attwell, R. G., in re ...
Aunn, R. H., in the Insolvent Estate of
Auret, A*, in re ...
Auret v. Executor of Haarhoff
Badenhorst, B. N., in re ...
Barn's Executors v. Haupt
Barnard, A., in the estate of the late
• •»
2
• • •
256
180,
190
24,
128
• ••
17
• • •
121
• • •
81
• « •
85
• V •
280
• • •
132
280,
285
• • •
198
• ••
807
Barnett A Co. v. The Namaqualand
sing Court ...
Barrington v. Barnard
Barry, J. D., in the estate of the late
Bartman v. Van Niekerk ...
Bate v. Nel
Baxter, W. M., in re
Beckham, W., in re
Bell, P. C, in re ...
Benally v. Benally
Berrange* v. Bmett
Berry, J. P., Petition of
Berry, R. J., in re
Beukes, Gideon, in re
Bevern, A., Petition of
Be v em's Bxecntors v. Ely
Beyers, M., in re ...
Bezuidenboud, M. E. J., in re
Bibbey v. Barnard
Birch, W. T., in re
Bisset, W. M., in re
Bloaro, B., in re ...
Board of Bxecutors v. Malan
Board of Executors v. Roux
Bodley v. Bodley ...
Boltman, P. J., t» re
Bolus, Harry, Petition of ...
Bond v. Bond
Boonzaier v. Castens
Boose, ▼. Wood head and others
Boshoff, W. H. P., in re ...
PAGE
Licen-
• • •
186
292,
294
• B •
281
• « •
228
• • •
103
• • •
253
188,
189
*• •
241
■ • •
135
• «•
179
• • •
234
• • •
83
• • •
124
274,
276
*••
82
• • •
264
• • •
120
• • •
83
• • •
147
• ■ •
11
• • B
58
• • •
117
• ••
19
■ • •
139
• • •
280
• ■ •
80
• ••
232
« • •
T69
61,68
Ml
179
11
TABLE OF CASES.
PAOB
Botha, J. A M in re ... ... ... 64
Botha, J. S., in the estate of ... ... 158
Botha, L. J., in re the Minor children of ... 156
Botha, N. J., Insolvent Estate of ... 291, 335
Botha, L. J. C, in re ... ... ... 269
Botha's Executors v. Deas Bros. ... ... 199
Botma v. Botma ... ... ... ... 72
Brasch v. Braech ... ... ... 215, 266
Breda's Assignees v. Edwards ... ... 263
Bresler, C. J. R. f D.son, in re
Brink, H. } in re ... ... ...
Blister, J. R., in re
Britz, G. J., in re ...
Broad, Charles, in re
Brown, J. M., in re ...
Brown & Bate v. Green ...
Bruce v. The Cape Town Council ...
Bruce v. Williams
B runner v. de Villiers
B rawer, Minors, in re
Bruwer, D. J. W. and others, Petition of
Bultfontein M. B. v. Armstrong and The
L. «fc S. A. Exploration Co.
Burger, B. J. J., Petition of
Burger, J A., in the estate of the late
Burger's Executrix v. Burger's Executor
Burgers v. Burgers
Burn, S. J., Petition of ...
Burn v. Burn
Burton, Win., jun., Petition of
Butler, J., Petition of
Cabrita, J. A., in re
Caffyn, R. H., in re
Cairncross v. Sheard
Campaan v. Campaan
Cape Central Railways (in liquidation), in
re ... ... ... 84,110,290,384
Cape Central Railways v. Walker ... ... 78
Cape of Good Hope Bank (in liquidation),
in re 2, 12, 18, 50, 67, 82, 85, 99, 121, 155, 216, 308
Cape of Good Hope Bank (in liquidation) v.
Arnoltz & Co. ... ... ... 103
Cape of Good Hope Bank (in liquidation),
in re Arnoltz's Estate... ... ... 99
Cape of Good Hope Bank (in liquidation) v.
Arnoltz, Junior ... ... ... 108
Cape of Good Hope Bank (in liquidation)
v. Belson ... ... ... 183, 281, 191
Cape of Good Hope Bank (in liquidation), in
re Coronet's Contract ... ... ... 60
Cape of Good Hope Bank (in liquidation) v.
DeneyB ... ... ... ... 82
Cape of Good Hope Bank (in liquidation) v.
East, Runciman and others ... 73, 70
Cape of Good Hope Bank (in liquidation) v.
Forde *fe Co. ... ... ... ... 137
Cape of Good Hope Bank (in liquidation) y.
Heath .,. ♦., .„ .,. 99
280
49
198
824
169
169
125
302
358
111
187
308
143, 192
19
232
190
... 143
... 170
182, 266, 307
... 280
... 234
... 73
... 186
366
20,57,111
PAOB
Cape~of Good Hope Bank (in liquidation) v.
UOCl ... ... ... ... ... w
Cape of Good Hope Bank (in liquidation)
v. Lawrence ... ... ... ... 199
Cape of Good Hope Bank (in liquidation) v.
Pilkington ... ... ... ... • 97
Cape of Good Hope Bank (in liquidation) r.
Porter ... ... . . ... 104
Cape of Good Hope Bank (in liquidation) v.
Robertson ... ... ... ... 34
Cape of Good Hope Bank (in liquidation), in
re Searle, F. A. ... ... ... 18
Cape of Good Hope Bank (in liquidation).
Second Report ... ... ... 21
Cape ef Good Hope Bank (in liquidation) v.
S A. Association ... ... ... 78
Cape of Good Hope Bank (in liquidation)
v. Stamper and others ... ... 178
Cape of Good Hope Bank (in liquidation).
Third Report ... ... ... 112
Cape of Good Hope Bank (in liquidation) v.
Twentyman ... ... 153, 170
Cape of Good Hope Bank (in liquidation)
y. Van Lier's Executors 18, 78, 104, 106, 283, 273
Cape of Good Hope Bank (in liquidation) v.
T UWvll ••• ••« ••• ••« £
Cape of Good Hope Bank (in liquidation) v.
Whitton ... ... ... ... 164
Cape of Good Hope Sayings Bank, Petition
of ... ... ... ... 308, 836
Cape Stock Farming Co. (Limited), in
re 233, 266, 276, 282, 289, 349
Cape Town Council v. The Metropolitan and
S. P. Railway Co 249, 253, 283
Cape-Transvaal G. M. Association (in liqui-
dation) ... ... ... ... 3
Caporn v. Marriott ... ... ... 304
Capora & Marriott v. Estherhuysen ... 324
Carelse v. Carelse ... ... ... 133
Cassell y. Schunke ... ... ... 324
Churchwardens, Dutch Reformed Church,
Aliwal North v. Green ... ... 144
Christie, R., in re the Minor Children of the
XI* I v • • • • • • «•• •«• • « » £ 14
Cilliers v. Pienaar and Wife ... 194, 201
Clack and Others vs. The R.M. of Graaff-
Reinet ... ... ... ... 78
Claremont and other Municipalities v. Ohls-
son's Cape Breweries ... ... 84> 196
Claridge v. Kellaway ... ... 47, 5 J
Oleghorn & Harris v. Hirsch ... ... 19
Cloete, J. H., in re ... ... ... 108
Cluver, P. D , in re ... ... ... 280
Coetzee, N. S. J., P.son, »« re ... ... 204
Coetzee, G. P. N., in re ... ... ... 280
Cohen, M , Petition of ... ... 307, 824
Cohen y. Stegmann ... ... ... 149
Colonial Government v. Morgenrood ... 84
Colonial Orphan Chamber v, Jgarnitz 50, 76, 34?
TABLE OF CASES.
• • •
111
PAGE
Combrinck v. My burgh ... ... 130, 135
Conradie, D. J M in the Insolvent Estate of ... 96
Cooper, H., in re ... ... ... ... 334
Copeland v. Short <fe Co 141, 143
Cornwall A Co. v. Gill ... 303
Coronel v. Ward & Weasels 134, 159
Conssmaker v. The G. W. Board of Executors 204
Craik, J., in the estate «f the late ... ... 190
Cranko's Executors v. Van Sohoor... ... 103
Cronge, P. D n in re ... ... ... 83
Cronje, C. A. J., in re ... ... ... 291
Crooks, W. J., Petition of 282
Croxier v. Crozier ... ... ... 73
Cunningham, M., Petition of ... 76, 111
Carle, G. B., in re 291
Carrie, W. J., in re ... ... ... 133
Curtisv. Day ... ... ... ... 208
Dahl v. Van der Merwe ... ... ... 226
Dalton v. Qnine ... ... ... 35, 50
Daly, Hendrika C, Petition of 166
Damaraland Mining & Exploration Company
(in liquidation), in re ... ... 78, 171, 190
Daniel & Co. v. Siebert & Van Eeden ... 323
D'Arc * Benson v. McDermott ... 19. 54, 77
Darter v. Great back ... ... ... 72
Darter Bros. * Walton v. Bresler ... ... 334
Davis, W. E. G., in re 184
Day, R^ in the insolvent estate of ... ... 21
De Beers Consolidated Mines (Limited) v.
Good ... ... ... ... 181
De Freitas v. De Preitas ... ... ... 809
De Jager, M. M. A., in re ... ... ... 103
De Klerk v. Marais ... ... ... 133
De Klerk v. De Klerk 29,58
De Korte, J. C, Petition of 285
Deneys & Baker, in re the ante-nuptial
contract of ... ... ... ... 183
Dessauer v. Dessaner ... ... 23, 84
De Swardt, 8. J. H., in re... ... ... 2
Devenish, D. G., in the insolvent estate of ... 309
De Waal & Co., in the Insolvent Estate of ... 54
De Waal, B. J., in re 124
De Waal, J. W. L M in re 324
De Wet, J. C. H., in re 2
De Wet, J. P., in re ... ... ... 2
De Villiers v. Baartman ... ... ... 103
Dodd, E., in the insolvent estate of ... 274
Dvckitt, P. M., in re ... ... ... 265
Dumper v. The Dnmper Developing Syn-
dicate ... ... ... ... 358
Duna v. Sabenkola 69,64,70
Duncan v. Tiengo 118,121,124
Dunman v. Trautmann ... ... ... 305
Du Plesais, J. A., in re ... ... ... 232
Du Plessis, J. P., in re ... ... ... 103
Du Plesais, C. S., t» re ... ... ... 147
Du Plesais Executors v. Da Plessis Executors 817
Du Plooy, C. W., in re ... ... ... 142
Du Toit, D. N. J., in re ... ... ... 291
PAGE
Du Toit v. Louw ... ... 290," W9
D.R. Church, Adderley-street v. Registrar of
jjeeo.8 ... ... ... ... fO
Dutch Reformed Church v. The Master &
South African Association ... ... 122
Du Toit, A. J., in re ... ... ... 73
Du Toit, J. J., Petition of... ... ... 163
Du Toit v. Du Toit ... ... ... 188
Dyasson, A., in-re ... ... ... 18
Dyer, P., Petition of ... ... ... 233
Eaton, A. M., Petition of ... ... ... 169
Eaton v. Eaton ... ... ... 197, 232, 266
Eaton, Robins & Co. v. Oliver ... ... 132
Edwards, W. M., in re ... ... ... 64
Elder's Executors v. Willey ... ... 179
Elder's Executors v. Linder ... ... 291
Erasmus, J. L., in re ... ... ... 124
Estate Robertson <& Bain v. du Plessis ... 117
Estherhuysen, D. W., in re ... ... 334
Evans, J. B., in the estate of the late ... Ill
Everitt, H., in the estate of the late ... 186
Executors, Mary Quin, v. Executor, John
Quin ... ... ... 134, 169
Executors of Loynes v. Cochrane ... ... 49
Fairbridge <fc Arderne v. Copeland... ... 2
Findlay & Tait v. Herbst ... ... ... 290
Fisher, C, in re ... ... ... ... 34
Fleischer, T., i n re ... ... ... 19
Fletcher <fe Co. v. Hugo ... ... ... 49
Fletcher & Co. v. Le Sueur ... ... 208
Fon iein, 8. H., in re ... ... ... 291
Forrest v. Ohlsson's Cape Breweries ... 84
Fourie, A. J., Petition of ... ... 20, 64
Francis Bros. v. Schunke ... ... ... 61
Frylinck, J. B. P., in re ... ... ... 103
Gannon v. Gannon ... ... ... 19
Gardner v. Teague A Gray ... ... 826
Gasiep v. Salie and another ... ... «*147
Gassier v. Poppe, Russeuw & Co. ... ... 64
Geduld, M. J., Petition of 262
Geduld v. Geduld ... ... 825, 837
General Estate A Orphan Chamber, Peti-
tion of ... ... ... ... 288
General Estate & Orphan Chamber v.
October ... ... ... ... 303
Gerioke v. Lamprecht ... ... 64, 72
Gericke, J. 8., in re ... ... ... 384
German, W. A. Co., v. Bansen ... ... 303
Geyer, J. J., Petition of ... ... ... 347
Gibbon, E. R. A., Petition of 34
Giddy, in re ... ... ... ... 290
Gill v. Hirsch ... ... ... ... 53
Gill v. De Vries ... ... ... ... 239
Gladstone, G., Petition of ... ... 86,284
Gladstone v. Gladstone ... ... ... 325
Glynn, J W., in the Estate of ... ... 3
Gordon, M., in re ... ... ... ... 12
Gough, E. M., in re ... ... ... 108
Grouws P. A. 8., Jan's son... ... ... 28Q
1 ,
IV
TABLE 0? CASES.
Graaff v. Klerck ... ... ...
Grady, J., in the insolvent estate of
Green v. Beveridge
Groenewald v. Botha
Groenewald's Executrix v. Beneke...
PAGE
... 1, 3
... 229
85,69
... 178
182, 232
Groom <fc White v. The Beohuanaland Ex-
ploration Company ... 40, 46, 110, 128
Groove, C. J., Petition of ... ... ... 18
Gnmpert, B., Petition of ... ... ... 182
• Haak, L. P., in re... ... ... ... 179
Haarhoff, H. C, in re ... ... ... 189
Halkett, J., and wife, in re ... ... 189
Hall, T., in the estate of the late ... 11, 198
Hall <fc Co. v. October ... ... ... 108
Hamilton Ross 6 Co. v. Saundert. ... ... 78
Hamman, A. S M in re ... ... ... 12
Harris v. Behm ... ... ... ... 123
Harris & Co. v. Grodner ... ... ... 102
Harvey, M., Petition of ... ... 324, 346
Hasell'8 Executors v. Herold ... ... 353
Hatch, M. A., Petition of ... ... ... 195
Hatch v. Hatch ... ... ... 199,296
Hayward, C. W. A., in re ... ... ... 79
Heath, H., in the Insolvent Estate of ... 71
Heinemann v. Heinemann... ... 201, 265
Henning, J. C, in re ... ... ... 83
" Hera," in re ... ... ... ... 20
Herp's Trustees v. Brown... ... ... 308
Heydenrych v. Solomon and McLoughlin ... 67
Heydenrych v. Langermann ... ... 67
Hiddingh v. Stookdale ... ... ... 179
Hill <fc Paddon v. Colonial Government 147, 275
Hirsch, in the Insolvent Estate of ... ... 80
Hirst v. Muller, Smith & Co. ... 103, 118
Hitzroth, M. M., in the Insolvent Estate of... 282
Hodges, P. T. R., in re ... ... ... 80
Holliday, H., in the Estate of the late ... 171
Holme, D. H., in re ... ... ... 81
Holtzhausen, A. M., in re ... ... ... 103
Honeyborne, J. A., in re ... ... ... 286
Honeyborne v. Honeyborne ... ... 139
Hoogendoorn, W. T., in re ... 282, 807
Hoole, E. B. C, in re ... ... ... 189
Hopkins, M. A., in the estate of ... ... 98
Hopkins v. Hopkins ... ... ... Ill
Horsfall, M. M., in re ... ... ... 24
Houston, D. D., in re ... ... 86, 77
Hughes, I. P., in re ... ... ... 103
Hugo, P. J., in the estate of ... 283, 837
Hulbert v. Capern A Marriott ... ... 60
Human, P. L., in re ... ... ... 280
Humphries v. Speneer ... ... ... 170
HyaiD8, S., in re ... ... ... ... 83
Hyland v. Brown ... ... ... 72
Hyland, E. C. W. f Petition of ... 30, 31
Impey, Walton & Co. v. Perkins ... 68, 82
Imroth v. Ward ... ... ... ... 200
Imroth v. The Liquidators Cape of Good
Hope Bank ... ... ... ... 228
PAGE
Innes, G., in re ... ... ... 280
Jackson, T. C, Petition of ... ... 277
Jackson v. Cutting ... ... 84, 49, 178
Jacobs v. East ... ... ... ... 868
Jamieson, John, in the Estate of ... ... 73
Jansen v. Conradie ... ... ... 226
Jassiem and Others v. The Master and
Steytler ... ... ... 186, 196, 212
Jay, J., in re ... ... ... ... 19
Johnson v. Vade ... ... ... ... 290
Jones v. Cauvin & Co. ... ... ... 168
Jooste v. Kok ... ... ... ... 251
Jordaan, S. A., in re ... ... ... 179
Joubert, P. P., Petition of ... 170, 190
Joubert, W. A., D.son, in re ... ... 198
Joubert v. Thompson ... ... ... 860
Jukkie, I., in the estate of the late 225, 266
Kaffrarian Colonial Bank v. Schunke ... 824
Kannemeyer, D. V., in re ... ... ... 274
Kaufmann & Paterson v. Atkinson ... 19
Kemp, W. J. H., in re ... ... ... 280
Kemper, E., in re... ... ... ... 64
Kidwell, A. B., in re ... ... ... 183
Kincaid v. Nixon's Executors ... ... 242
King Bros. v. Wahl ... ... ... 804
Kleyn, M. G. S., in the Insolvent Estate of... 170
Klerck, H. J. W., in the Insolvent Estate of 286
Klinck v. Klinck ... ... ... ... 868
Knoop, J. N., in re ... ... 199, 204
Knox, D., Petition of ... ... ... 169
Knox v. Knox ... ... ... ... 801
Knysna, C. G. M. Co. (Limited), in re ... 184
Knysna Divisional Council v. Kannemeyer's
Executors ... ... ... ... 179
Kohne, C. H., Petition of ... ... ... 336
Koller v. Abas ... ... ... ... 200
Kotzee v. Kotzee ... ... .«. 31
Kretschmar, E. t Petition of ... ... 276
Kretzinger, J. W. and J. M n in the Insolvent
Estates of ... ... ... ... 277
Kruger, J. C, in re ... ... ... 291
Knimmeck, J. J., in re ... ... ... 19
Kuhn, H. J., in re ... ... ... 864
Kutln v. Schalkwyk ... ... ... 65
Kutin v. The Attorney-General ... ... 866
Kuys and Another v. Badenhorst ... ... 179
Kyffin, A. R., in re ... ... ... 84
Lamb, J., in re ... ... ... ... 120
Lamb, J. H., in re the application of ... 186
Lamb, J. M., in the estate of ... ... 809
Lane v. Sorenssen, in re u Saga " ... ... 26
Langford, A., in re ... ... ... 179
Langford v. Marais ... ... ... 266
Lanbsoher, J. A., in the Estate of the late ... 1
Laubser, C. A., in re ... ... ... 884
Lawley v. The Cape Town Council ... 302
Lawrence & Co. v. Russouw Bros. ... ... 280
Lawrence & Others v. Ward A Weasels 184, 179
Lawrence & Others v.- Ward & Weasels, in re 214
Table of cases.
PAGE
Lawrence & Sons, in re ... ... ... 103
Leasing, L. S., in re ... ... ... 204
Lee, C. W„ Petition of 281, 307
Lee, W., Petition of ... ... ... 182
Leibenberg, C. R., in re ... ... ... 2
Le Ronx, in the Insolvent Estate of ... 276
Le Ronx, C. M M Petition of ... ... 276
Lesar, 8. B., Petition of ... ... ... 282
Levatte, J., Petition of ... ... ... 69
Levatte v. Levatte ... ... 76,119
Levin v. Garlick ... ... ... ... 26
Lewis & Co. v. Schmidt ... ... ... 834
Liebenberg v. Westhuysen ... ... 102
Liebenberg v. van der Westhuysen ... 166
Liiford, C, in re ... ... ... ... 291
Lind v. Van der Veen ... ... ... 112
Lippert, M. E., Petition of 263
Lkchtly v. Strangmann ... ... ... 168
Lithman & Co. v. Morris ... ... ... 2
Loan 6 Mortgage Agency v. Bruhns ... 198
Loedolff, C, in re.., ... ... ... 120
Logan v. Carter ... ... ... 212, 279
London and South African Exploration Com-
pany v. Cathypadyachy ... ... 186
London and S.A. Exploration Co. v. Ronliot 4
Lopes ▼. Lopes ... ... ... ... 8
Letter, M. C, tn re ... ... ... 2
Lotter v. Ndhlangalava ... ... ... 197
Lonbser, M. P., Petition of ... ... 190
Lonw v. Groenewald ... ... ... 212
Lonw, 8. P., in re ... ... ... 2
Lonw v. Theron ... ... ... 29, 81
Loyden, M. A., Petition of ... ... 76
Land v. Lonw ... ... ... ... 863
Ltucombe's Trnst Fund, in re ... 72
Lyons A Sons v. Caissao ... ... ... 366
MacKenzie, M. E., in re ... ... ... 169
Maekie, Dnnn 6 Co. v. The Potohefstroom
Exchange Co. ... ... . . 66
Malan, D. J., Petition of 276, 276
Malcolm v. Pringle ... ... ... 3
Mall, T. E., in re ... ... ... ... 19
Mantle, M., Petition of ... ... ... 173
Mantle v. Mantle... ... ... ... 291
Mantis, P. J., tn re ... ... ... 64
Marais, P., in re ... ... ... ... 280
Marais, P. S. S., tn re ... ... ... 179
Marais, I. S. J., tn re ... ... ... 147
Marais v. Baartman ... ... ... 212
Marais v. Laugford ... ... ... 234
Marais ▼. Bensbnrg ... ... ... 10
Mark, B., Petition of 347,866
Martin, W. W„ in the Estate of ... 11, 79
Maritz, P. J., in re ... ... ... 103
Maritz v Delport ... ... ... ... 203
Maroney, M.. in the estate of the late 166, 178
Masters, J. S., in the estate of the late 76, 182
Master Supreme Court, in re the petition of 142
Master Supreme Court v. Buxman... ... 146
PAGE
Mathew v. Pentz ... ... ... ... 40
Matthews, S. B., Petition of ... 281, 288
McEwan, B., Petition of ... ... 284, 337
McGregor's Trustees v. Silberbauer ... 837
McKay v. De Beers Mining Company ... 317
MoKenzie, tn re ... ... ... ... 290
McLacblan Bros. v. Du Toit ... ... 279
McLeod, A. J., Petition of ... ... 274
McLeod, J. H., in re ... ... ... 212
McLeroth, tn re ... ... ... 73, 78
McNamara, in the estate of the late ... 364
McNaughton's Assignees v. Louw ... ... 124
Meder, H. S., in re ... ... ... 189
Mego, C. W., tn re ... ... ... 228
Meiring, A. M., Petition of ... ... 84
Meiring v. Grundling's Executor ... ... 269
MelliBh v. Floris ... ... ... ... 146
Meyer, N. S., Petition of ... ... ... 213
Meyer t. Reisberg ... ... ... • 76
Michau, A., in the estate of the late ... 182
Miller, J. H., tn re ... ... ... 198
Miller, J., in the Estate ef ... ... 84
Miller v. The Richmond Licensing Court 124, 146
Mills y. Maree ... ... ... ... 263
Mills v. Reyneke... ... ... ... 263
Moller v. Askew ... ... ... 2,11
Moller, H. P., in re ... ... ... 28t
Molteno's Executors v. Elliott ... ... 82
Momsen, J. A. L., in re ... ... ... 103
Moolman, W. H., in re the minor ... ... 226
Moore, J., Petition of ... ... ... 286
Morgan & Coltman v. The Executors ef Grewer 8
Morkel, W. A., tn re ... ... ... 280
Morkel, W. V., tn re ... ... ... 87
Moroney, in re the minors... ... ... 286
Morrison, in re the Insolvent Estate of ... 286
Mortimer k Co. v. Herbst... ... ... 286
Morton v. Morton ... ... ... 67
Mess, I., Petition of ... ... 291, 802
Mostern, S. J., in re ... ... ... 18
Mostert, P. J. C, tn re ... ... .,.. 83
Mostert v. The Registrar of Deeds... ... 19
Mudie, M., Petition ... ... ... 347
Muller, A. A., tn re ... ... ... 179
Midler's Executors v. The Argus Company
(Limited) ... ... ... ... 206
Mulvihal, T., Petition of ... ... ... 138
Murray, F. C, tw re ... ... ... 824
Mutual Society v. Claremont Hall Trustees 82
Muzlak v. Cole ... ... ... ... 366
Myburg & Co.'s Assignees v. The Executor of
J. F. du Toit... ... ... ... 64
Myburgh, R. H., tn re ... ... ... 179
My burgh's Assignees v. Klerck ... ... 108
Myekulu v. Simkins ... ... ... 116
Nathansohn v. Con^die A Lambert ... 179
Naude, F. J. & Wife, Petition of 282
Nel, A. J. W. P., in re ... ... ... 34
Nel, G. F., tn re ... ... ... ... 19
VI
TABLE OF CASES.
PAGE
Nel and others v. Nel's Executrix ... ... 125
Nel A Tiran v. Lind A Tiran 204, 214, 257, 262
Nelson, M. L., in re ... ... ... 8
Nelson, O. 8., Petition of ... ... ... 347
Nesbitt, P. S., Petition of . . . 275
Nesbitt v. Nesbitt 280,307
Nezar, G. A. T., in re ... ... ... 83
Niehaus v. Niehaus ... ... ... 138
Noble v. Frisby ... ... ... ... 290
Norval, J. J., in re ... ... ... 83
Nowitz, B. I., in re ... ... ... 120
Oates, M. A., Petition of ... ... ... 97
Oates, P. J., in the Insolvent Estate of ... 40
Oates y. Trustee Insolvent Estate of Oates 99
Odendaal, P. G., in re ... ... ... 280
Odendaal, W. S. N., Petition of ... 347, 355
Odendaal v. Matthee ... ... ... 179
Ohlsson & Co. v. Day ... ... ... 19
Ohlsson A Go. v. Tiedman's Executrix ... 280
Ohlsson's Cape Breweries v. Whitehead ... 344
Oliver, R., in the Insolvent Estate of ... 134
Oliver, D. H., and others, Petition of ... 86
Oliver v. Oliver and Peckover ... ... 51
Olivier, H. H., Petition of 30
Olivier, G. C. and deceased spouse in the
estate of ... ... ... ... 309
Omaruru, G. M. Co. (in liquidation), in re ... 119
Omaruru G. M. A Exploration Co. v. Hinoh 64
Oppenheim, H., in the estate of the late ... 184
Oudtshoorn Divisional Council v. Rauben-
heimer ... ... ... ... 253
Overbeek, H. M., in the estate of the
late ... ... ... ... 124, 233, 266
Paarl Bank (in liquidation) ... 12, 81, 85
Paarl Bank (in liquidation), in re 215, 292, 307, 334
Paarl Bank, (in liquidation), First Report ... 12
Paarl Bank (in liquidation) v. Executrix of
Roux ... ... ... ... 136
Paarl Bank (in liquidation) v. Hugo A others 71
Paarl Bank (in liquidation) v. Le Roux ... 188
Paarl Bank (in liquidation) v. Wicht ... 183
Paarl Bank (in liquidation) v. Clemen ... 290
Paarl Fire Assurance Co v. Gildenhuys ... 82
Paarl Municipality v. Blignaut ... ... 77
Parker v. Hopkins ... ... 40, 49, 76
Partridge v. Partridge 179, 212, 228, 232, 286, 354
Pattison, W., in the estate of the late ... 324
Pelser v. Van der Linde ... ... ... 364
Peters v. Peters ... 20, 30, 67, 78, 190, 212, 232
Peters v. Skead, Cowling & Co. ... ... 210
Phillips v. Phillips 23, 111, 190
Phillips, S., in the Estate of ... ... 85
Pienaar, B. J., in the estate of the late ... 183
Pienaar's Executors, Petition of ... ... 142
Pietv. Piet ... ... ... 113,190
Pilgram, B., in the Insolvent Estate of ... 287
Port Elizabeth Town Council, Petition of 147, 233
Pote, Charles, in the Estate of the late ... 101
Potgieter's Executor v. Potgieter ... ... 235
PAGE
Preiss v. Gluckman ... ... 17,116
Pretorius, J. J., jun , tn re... ... ... 334
Pretorius, W., in the Estate of ... 34, 809
Prince v. Prince ... ... ... 324, 386, 854
Prince, Vintcent A Co. v. Lizamore ... 124
Protecteur Fire Assuranoe Company (in
liquidation) v. Du Pre ... ... 179
Quin, J., in the Estate of ... ... ... 21
Quin's Executor v. Quin ... ... ... 332
Rawbone v. Muller, Smidt A Co. ... ... 280
Rayner A Co. v. Clements... ... ... 279
Reed, J. G., in re... ... ... ... 324
Reinhard, B., Petition of ... ... ... 347
Regina v. Adelburg ... ... ... 191
Regina v. Arendse ... ... ... 97
Regina v. Arends ... ... ... 114
Regina v. Blumenthal ... ... ... 268
Regina v. Booysen ... ... ... 263
Regina v. Briel ... ... ... ... 31
Regina v. Christian Carolus ... ... 291
Regina v. Cobus Jantjeb ... ... ... 379
Regina v. David Petewe ... ... ... 282
Regina v. Fillis ... ... ... ... 79
Regina v. Fredericks A Mnhler ... ... 126
Regina v. Giliome, Sen. ... ... ... 166
Regina v. Guysman ... ... ... 79
Regina v. Haberkorn ... ... ... 102
Regina v. Kiviet Manel ... ... ... 33
Regina v. Leoman ... ... ... 281
Regina v. Logan ... ... ... ... 119
Regina v. Loontjes ... ... ... 71
Regina v. Lucas A Watkins ... ... 282
Regina v. Maseri A Ramsitsani ... ... 113
Regina v. Meiring ... ... ... 225
Regina v. Moses Fredericks ... ... 281
Regina v. Plessis... ... ... ... 102
Regina v. Plessis A Finnes ... ... 130
Regina v. Prince ... ... ... 183, 191
Regina v. Putshu A Klekiso ... ... 201
Regina v. Rhenoster ... ... ... 209
Regina v. Russouw ... ... ... 113
Regina v. Seale ... ... ... ... 275
Regina v. Stephanas ... ... ... 275
Regina v. Stodard ... ... ... 326
Regina v. Swartlandzana ... ... ... 231
Regina v. Viseer ... ... ... ... 860
Rensberg v. Prins and others ... ... 188
Rensburg, M. C. J., Petition of ... 120, 166
Rentzke, P. M., in re ... ... ... 179
Resid v. Abader ... ... ... 327, 836
Richards, M. A., Petition of ... 64. 146
Richards v. Richards ... ... 897, 811
Riddell v. Riddell ... 84
Rigal v. Grodner ... ... ... ... 102
Rodolf v. Van der Merwe... ... ... 214
Robertson A Bain, in the Insolvent Estate of 29
Robertson v. Robertson ... ... 46, 64
Ross, J. W., Petition of ... ... ... 230
Ross, G. B., in the Estate of ... ... 40
TABLE OF CASES.
*•
Vll
Rom 4 Go. v. Perle
Bow 4 Co. v. Ba&rtman ..,
Ross r. Scott 4 Armstrong
Rotssouw, J. J., in re ..,
Roth well v. Roth well
Roux, D., in re
Roax, E. C. H., in re
Roux, J. L., in re...
PAGE
. 146
,. 280
. 266
.. 24
,. 133
,. 147
,. 64
,. 179
.. 49
Roax, J. A. 4 Co., in the insolvent estate of 281
Rudd, E. A., in re ... ... ... 103
Rodman, m re the minors... ... ... 281
Russouw, J. H., in re ... ... ... 2
Rossouw, R. E., Petition of ... ... 2
Rnifloaw Minors, in re ... ... ... 80
Rossouw v. Ressouw ... ... 59, 111
S&modien, in the Estate of the late 124, 166
Sampson, T., petition of ... ... ... 184
Savings Bank v. Beaumann ... ... 185
Savings Bank v. De Beer... ... 156, 185
Havings Bank v. De Waal... ... ... 19
Hcallan's Executors v. Voortman ... ... 20
Scanlen's Assignment, in re ... ... 347
Scarbrow v. Reynecke ... ... ... 280
Scheepers, J. J., in re ... ... 63, 134
Schoeman, L. J., in the Insolvent Estate of 113
Schoeman, S. P. A., Petition of ... ... 281
Sehrink, E., in re ... ... ... 2
Scott, J., in re ... ... ... ... 280
Scott v. Bevern ... ... ... ... 179
Scott Brothers v. Hirsch ... ... ... 19
Scott Bros. v. Sytner ... ... ... 350
Searight v. Robertson ... ... ... 83
Searle 4 Co. v. Stander ... ... 287,334
Seavill 4 Colley ... ... ... ... 320
Sellar Brothers v. Cranna... ... ... 103
Shah of Persia Syndicate (in liquid.) v. Froud 198
Shah of Persia Syndicate (in liquid.) v. Smart 198
Shakofsco v. Van Noorden ... 101, 121, 235
fcihawe v. Honey borne ... ... ... 295
Sichel v. Kannemeyer ... ... ... 146
Sluiter v. Malan ... ... ... ... 118
Smailes, P., Petition of ... ... ... 84
Small v. Frames ... ... ... ... 147
Smart, Charles W., in re ... ... ... 266
Smith, B. J., in re ... ... ... 291
Smith, H. G. S., in re ... ... ... 324
omitb, «)•, tfi re ... ... ... ... 29
Smith 4 Carter v. Van Staden ex parte Van
Staden ... ... ... ... 325
8mith v. Croeser ... ... ... ... 290
Smith v. Gluckman ... ... ... 83
Smith v. Lategan... ... ... ... 188
Say man v. Snyman's Executor ... ... 280
Solomon v. Woolf 224, 263
Sonnenberg, H. J., in re ... ... ... 276
8.A. Association v. Elliot ... ... ... 19
S.A. Association v. Leary ... ... 353
South African Assurance Society v. Hartingh 1 18
PAGE
South African Assurance Society v. Muller... 118
South African L. 4 M. Agency, Petition of 159
South African L. 4 M. Agency v. Baird ... 179
South African L. 4 M. Agency v. Bruhns ... 188
South African Mutual v. Muller ... ... 279
South African M. L. A. Association v. Du
xr lessis ... ... ... ... w"
Spangerberg, C. H., in re the minor ... 358
Standard Bank, Petition of ... ... 85
Standard Bank v. Jooste ... ... ... 146
Standard Bank v. Olivier ... ... ... 279
Standard Bank v. Poppe, Russouw 4 Co. ... 72
Standard Bank v. Robertson 4 Bain 19, 29, 2i2
Standard Bank v. Wylie ... ... ... 268
Staples v. Swansfelder ... ... ... 140
Steer, F. B., in re... ... ... ... 280
Steffeok, G., in re... ... ... ... 34
Stegmann v. Cohen ... ... 82, 102, 149
Stephan v. Lipsett 4 wife... ... ... 133
Stephan Bros., Petition of ... ... 190
Stewart, W. K., in re ... ... ... 280
Stewart, A., in re... ... ... ... 291
Stewart v. Kingon ... ... 101, 191
Steynsburg Steam Mill Co., in re ... ... 166
Steytler v. Cohen... ... ... ... 118
Stigling, A., in re... ... ... ... 280
Steytler v. Hudson ... ... ... 276
Stotfels, Philida, Petition of 121
Struben v. The CapeDist. Waterw.Comp. 171, 838
Sturk 4 Co. v. Moodie ... ... ... 228
Sturrook v. Birt ... ... ... 20, 315
Tadman, M. A. L., Petition of ... ... 347
Taylor v. Symonds 4 Schunke ... 3, 14, 83, 336
Teengs v. Garlick... ... ... 34, 132
Teengs v. Garlick, in re ... ... ... 156
Theuni*sen, C, Petition of ... ... 284
Theunissen, D. J., in re the application of ... 338
Theuniasen, M. W., in re ... ... ... 73
Thomas, A., Petition of ... ... ... 846
Thomas v. Boose ... ... ... ... 2
Thompson, A., in re ... ... ... 147
Thorne 4 Stuttaford v. McNally ... ... 48
Tilney, L., in re ... ... ... ... 2
Tindall, A. G. H., in the estate of the late .,. 234
Tindall, W. A., in re ... ... ... 49
Tiran, J. P., in the Estate of the late ... 98
Topp v. Topp ... ... ... 103, 214
Trustee, Zulu Bishopric Fund v. Kruger ... 63
Trustees Van Wyk's Estate v. De Jager 4
Others ... ... ... 179,183
Truter, C. J. M., Petition of ... 142, 156, 183
Truter v. Truter ... ... ... 232, 234 302
Union Bank (in liquidation), in re... 3, 30, 64, 101
Union Bank (in liquidation), v. Beit ... 367
Union Bank (in liquidation), v. Brentnall ... 76
Union Bank (in liquidation) v. Clark ... 188
Union Bank (in liquidation) v. Hofmeyr's
Executrix ... ... ... 64, 278
Union Bank (in liquidation) v. Ruprouw ... 212
• ••
Till
TABLE OP CASES.
PAGE
Union Bank (in liquidation), in re Sir T.
Scan 1 en's compromise... ... ... 122
Union Bank (in liquidation) v. Shackell ... 142
Union Bank (in liquidation) v. Thompson ... 72
Union Bank (in liquidation) v. Uys 118, 119, 846
Union Bank (in liquidation) v. Watson's
Heirs & Executors ... 40, 72, 104, 106, 269
Union Bank (in liquidation) v. Watson's
Heirs, in re ... ... ... ... 274
Uys v. Baartman... ... ... ... 118
Uys, N. P., Petition of ... ... 1 82, 189
Van Antwerp, J. L., in re... ... ... 334
Van Blerk, M. M., Petition of ... ... 824
Van der Byl 6 Co. v. Rode ... ... 178
Van der Byl & Co. v. Zuidmeer ... ... 232
Van der Merw*, I. J. H., in re ... ..* 280
Van der Merwe, W. J., tn re ... ... 147
Van der Merwe, W. S., in re ... ... 19
Van der Westhuysen, J., in re ... ... 49
Van der Westhuysen, D. P., Petition of ... 281
Van Eeden, H. J., in re ... ... ... 19
Van Heerden, A. P., in re... ... . v 2
Van Heerden, J. L., in the Estate of the late 171
Van Heerden, J., in the estate of the late 199, 212
Van Heerden, L. C., Petition of ... ... 170
Van Heerden, tn re the minors ... ... 286
Van Heerden v. the Victoria Wst. Municipy. 69, 70
Van Niekerk, A. P. B., in re ... ... 64
Van Niekerk, J. L., in re ... ... ... 19
Van Niekerk, H., Petition of ... ... 325
Van Reenen, D. G. (deceased), and {surviving
spouse, in re ... ... ... ... 280
Van Reenen, S.V., in the insolvent estate of 285, 309
Van Renen's Trustee v. Abel .-.. ... 329
Van Renen's Trustees v. Versfeld and others 346
Van Rensburg, M. C. J., Petition of 120, 156
Van Rensburg, P. J. J., in re ... ... 334
Van Rhyn v. Van Zyl ... ... ... 311
Van Wyk, J. A B., in re ... ... ... 142
Van Zyl, in the Insolvent Estate of ... 81
Van Zyl, C. J. A., in re ... ... ... 346
Van Zyl, G. J., in re ... ... ... 265
Van Zyl, tn re the minora ... ... ... 284
Van Zyl, W. J., in the estate of the lato ... 266
Van Zyl and Others v. DeBfer's Executrix 59, 75,
78, 196j 280
Van Zyl, J. B., in the Estate of the late ... 81
Van Zyl, P. J., Petition of ... 80, 103
Van Zyl, P. P. J., in re ... ... ... 124
Van Zyl v. Schwartz ... ... ... 72
Venter, C, Petition of ... ... ... . 81
Victoria W. C. Factory, in re ... ... 250
Viljoen, C,in the Insolvent Estate of 18, 59, 164,213
Villa v. Villa ... ... ... ... Ill
Viuk's Executors v. Uys ... ... ... 124
Vintcent. L. A., Petition of ... ... 347
Visagie, in re the minors ... ... ... 284
Vogelgezang, M. L., in re ... ... ... 120
Vogl, J., in re ... ... .„ ... 78
PAGE
Von Below v. Tiengo ... ... 118, 121, 124
Walker v. Cape Central Railways (in liqui-
dation) ... ... ... 57 86
Walker v. The Cape Central Railways (in
liquidation), in re ... ... ... 162
Walker v. Dickson ... ... 198, 263
Wallace, C. W., tn re ... ... ... 29
WalmerVillage Managem. Board, inre 376, 283, 285
Walsh, A. H., in the estate of ... ... 188
Ward, C. G., in re ... ... ... 2
Ward v. Gerald & Co 197, 214, 228
Warner v. Tomkin ... ... ... 188
Warren v. Clements ... ... ... 287
Watson's v. Burchell's Executors ... ... 296
Watson's Executors v. Broderick ... ... 123
Watson's Executors v. Watson ... ... 159
Watson's Executors v. Watson's Heirs ... 244
Webster v. Solomon ... 39,63
Weeber, W. D., in re ... ... ... 228
Wellington Bank (in liquidation), in re 81, 181
Wessels v. Basson ... ... ... 63
Wessel's Executors & Bisset v. The Master
High Court ... ... ... ... 311
Western Province Bank v. Malherbe ... 2, 29
Western Province Bank v. Roberts ... 353
Westhuysen v. Heyns and others ... ... 85
Wheeler, Petition of ... ... ... 113
Wheeler v. Wheeler 122, 146, 232
White, J. G., tn re ... ... ... 108
White, Muller & Co. v. Cohen ... ... 83
Whitehead, W. C, tn re ... ... ... 2
White House M. <b D. Syndicate, tn re ... 21
Wicht, J. J., in re ... ... ... 275
Wicht v. Rutherfoord ... ... ... 72
Widdowson, M. J., Petition of ... 199, 266, 281
Wilhelm, G., tn re ... ... ... 291
Wilke, in the Estate of the late ... ... 98
Willey, G. J., in re ... ... ... 280
Williams, W., in re ... ... ... 354
Williams v. Samuels ... ... 83, 178
Williams v. Snooke ... ... ... 170
Wilson v. Hall & Wessels ... ... ... 107
Wilson v. Shaw ... ... ... ... 299
Wilson v. Wilson & Minnaar 8, 51, 69, 101, 146, 147
Witkop Syndicate v. Kleinschmidt ... 884
Wolstenholme, J., in the Insolvent Estate of 846
Woodcock, C, Petition of... ... ... 809
Woodman, C, Petition of ... ... ... 169
Woodman v. Robinson ... 178, 182, 214, 263
Worcester M unicipality v. The Colonial Go vt. 1 26
Wright, J., Dr., in the estate of the late ... 1
Wright v. The Colonial Government 146, 216
Wright A Drennan, in re the ante-nuptial
contract of ... ... ... ... 178
Wright v. Williams ... ... 38,67,99
Zahn v. Du Preez ... ... ... 114
Zeederberg & Duncan v. Hall ... ... 82
Zeeman, R. J., Petition of ... ... 836
Zoutspansberg Palmietf ontexn Estate Co , tn re 111
TABLE OF CASES.
PAGE
Ackermann, J. H. B., in the Insolvent
Estate of . ... ... ... ... .69
Adshade, Petition of ... ... 20,46
Alexander, A-, in re ... ... ... 2
AHwright, E., in re ... ... ... 19
Amsterdam, C, in re ... ... ... 19
Arendse, J., in re ... ••• ... ••• 2
Askew v. Holler ... ... ... ... 24
Atkinson, v. The Registrar of Deeds ... 17
Annn, K H., in the Insolvent Estate of ... 85
Bevern*s Executors v. Ely ... ... ... 82
Bisset, W. Iff., in re ... ... ... 11
Bloam, B., in re ... ... ... ... 68
Board of Executors v. Bonx ... ... 19
Bolus, Harry, Petition of ... ... ,..80
Boose, v. Woodhead and others ... 61, 68
Botha, J. A., in re ... ... ... ... 64
Botma r. Botma ... ... ... ... 72
Brink, H., in re ... ... ... ... 49
Burger, B. J. J., Petition of ... ... 19
Gabrita, J. A., in re ... ... ... 73
Campaan v. Campaan ... ... 20, 67
Cape Central Railways v. Walker ... ... 78
Cape of Good Hope Bank (in liquidation) v.
v oweii ... ... ... ... t»
Gape of Good Hope Bank (in liquidation) v.
xi e a m ... ... ... ... £v
Cape of Good Hope Bask (in liquida-
dation 2,12,18,50,57
Gape of Good Hope Bank (in liquidation) v.
Estate of Van Lier ... ... 18, 78
Cape of Good Hope Bank (in liquidation) in
re Searle, F. A. ... ... ... 18
Cape of Good Hope Bank (in liquidation),
Second Report ... ... ... 21
Cape of Good Hope Bank (in liquidation) v.
Robertson ... ... ... ... 84
Cape of Good Hope Bank (in liquidation) v.
tioex ... ... ... ... ... tt»/
Gape of Good Hope Bank (in liquidation) v.
S.A. Association ... ... ... 78
Cape of Good Hope Bank (in liquidation) v.
East, Rnnciman and others ... 73, 75
Gape of Good Hope Bonk (in liquidation) in
re Coroners Contract ... ... ... 50
Cape-Transvaal G. M. Association (in liqui-
jf^*** flatioii) •■• ••• ••■ ••• 8
PAGB
Clack and Others vs. The R.M. of Graaff-
Reinet ... ... ... ... 78
Claridge v, Kellaway ... ... 47, 51
Cleghorn & Harris v. Hirsch .... ... 19
Colonial Government v. Morgenrood ... 34
Colonial Orphan Chambers v. Marnitz 50, 75
Crozier vs. Crozier... ... ... ... 78
Cunningham, M., Petition of ... ... 76
Dalton v. Quine ... ... ... 35, 50
Damaraland M. and Exploration Co. (in
liquidation) ... ... ... ... 78
D'Arc v. Benson & MoDermott 19, 54, 77
Darter v. Greatbaok ... ... ... 72
Day, R., in the Insolvent Estate of ... ... 21
De Klerk v. De Klerk 29,58
Dessauer v. Dessauer ... ... ... 23
De Waal <fc Co., in the Insolvent Estate of ... 54
Duna v. Sabenkola ... ... 59,64,70
D.R. Church, Adderley-street v. Registrar of
Deeds ... ... ••• ••• 75
Du Toit, A. J., in re ... ... ... 78
Dyasson, A., in re ... ... ... ... 18
Edwards, W. M., in re ... ... ... 64
Eeden, van, H. J., in re ... ... ... 19
Executors of Loynes v. Cochrane ... ... 49
F airbridge & Arderne v. Copeland ... ... 2
Fisher, C, in re ... ... ... ... 34
Fleischer, T., in re... ... ... ... 19
Fletcher v. Hugo ... ... ... ... 49
Fourie, A. J., Petition of ... ... 20, 64
Francis Bros. v. Sohunke ... ... ... 51
Gannon v. Gannon ... ... ... 19
Gassier v. Poppe, Russouw & Co. ... ... 64
Gerioke v. Lamprecht ... ... 64, 72
Gibbon, E. R. A., Petition of ... ... 34
Gill v. Hirsch ... ... ... ... 53
Glynn, J. W., in the Estate of ... ... 3
Gordon, M., in re ... ... ... ... 19
Graaff v. Klerck ... ... ... ... 1, 8
Green v. Beveridge ... ... 85, 69
Groom and White v. The Bechuanaland Ex-
ploring Co. ... ... ... 40, 46
Groove, C. J ., Petition of ... ... ... 18
Hall, T., in the Estate of ... ... ... 11
Hamilton Ross & Co. v. Saunders ... ... 78
Hamman, A. S., in re ... ... ... 12
Hayward, C. W. A., in re ... ... ... 79
11
TABLE 0? CASES.
PAGE
Heath, H., in the Insolvent Estate of ... 71
Heerden, van, A. P., in re ... ... ... 2
Heerden, van v. Victoria West Municipality, 59, 70
4C Hera," tn re ... ... ... ... 20
Heydenrych v. Salomon and MoLoughlin ... 67
Heydenryeh y. Langernunn ... ... 67
Hirsch, in the Insolvent Estate of ... ... 80
Hodges, P. T. R., in re ... ... ... 80
Horsfall, M. M., tn re ... ... ... 24
Houston, D. D., in re ... ... 35, 77
Hnlbert v. Capern & Marriott ... ... 60
Hyland v. Brown ... ... ... ... 72
Hyland. E. C. W., Petition of ... 30, 31
Impey, Walton 6 Go. v. Perkins ... ... 58
Jackson v. Catting... ... ... 34,49
Jaxnieson, John, in the Estate of ... ... 78
Jay, J., tn re ... ... ... ... 19
Kaufmann 6 Paterson v. Atkinson ... ... 19
Kemper, E., tn re ... ... ... ... 64
ELotzee v. Kotzee ... ... ... ... 81
ELrummeck, J. J., tn re ... ... ... 19
KttUn v. Sohalkwyk ... ... ... 55
Kyffin, A. B«, tn re ... ... ... 84
Lane v. Sorenssen, in re " Saga " ... ... 26
Lanbsoher, J. A., in the Estate of the late ... 1
Leibenberg, C. R., in re ... ... ... 2
Levatte, J., Petition of ... ... ... 59
Levatte v. Levatte and Henderson ... ... 76
Levin v. Garliok ... ... ... ... 25
Lithman & Co. v. Morris ... ... ... 2
London and S.A. Exploration Co. v. Rouliot 4
Lopes v. Lopes ... ... ... ... 3
Lotter, M. C, tn re ... ... ... 2
Louw, S. P., tn re ... ... ... ... 2
Louw & Co. v. Theron ... ... ... 29
Loyden, M. A., Petition of ... ... ... 76
Luscombe's Trust Fund, in re ... ... 72
Mackie, Dunn & Co. v. The Potohefstroom
Exchange Co. ... ... ... ... 56
Malcolm v. Pringle ... ... ... 8
Mall, T. E., in re ... ... ... ... 19
Marais v. Rensburg ... ... ... 10
Marais, P. J., tn re ... ... ... 64
Martin, W. W., in the Estate of ... 11, 79
Masters, J. S., in the Estate of ... ... 76
Mathew v. Pentz ... ... ... ... 40
McLeroth, tn re... ... ... 73, 78
Meiring, A. M., Petition of... ... ... 34
Merwe, van der, W. S., in re ... ... 19
Meyer v. Reisberg ... ... ... 76
Miller, J., in the Estate ef ... ... ... 34
Moller v. Askew ... ... ... 2, 11
Morgan & Coltman v. The Executors ef Grewer 8
Morton v. Morton ... ... ... ... 67
Mostern, S. J., tn re ... ... ... 18
Mostert v. The Registrar of Deeds ... ... 19
Myburg A Co.'s Assignees v. The Executor of
J. F. du Toit ... ... ... ... 64
Nelj G. F.j tn re .,. .,. ... ... 19
Nel, A. J. W. P., in re
Nelson, M. L., tn re
Niekerk, van, J. L., tn re ...
Niekerk, van, A. P. B., tn re
Oates, P. J., in the Insolvent Estate of
Ohlsson 6 Co. v. Day
Olivier, H. H., Petition of ...
Oliver v. Oliver and Peckover
ii
••t
PAGE
... 84
... 8
... 19
... 64
... 40
... 19
... 80
... 51
Omaruru G. M. <b Exploration Co. v. Hirsch 64
Paarl Bank (in liquidation) ... 12, 81, 85
„ „ „ First Report ... 12
„ „ „ v. Hugo and others 71
„ Municipality v. Blignaut - ... ... 77
Parker v. Hopkins... ... 40, 49, 76
Peters v. Peters... ... ... 20, 3&, 67, 78
Phillips v.Phillips... ... ... ... 23
Phillips, S M in the Estate of 35
Preiss v. Gluokman ... ... ... 57
Pretorius, W., in the Estate of ... ... 84
Quin, J., in the Estate of ... ... ... 21
Regina v. Briel ... ... ... ... 23
v. Kiviet Manel ... ... ... 88
v. Loontjes ... ... ... 71
v. Fillis ... ... ... ... 79
v. Guysman ... ... ... 79
Richards, M. A., Petition of ... ... 64
Robertson 6 Bain, in the Insolvent Estate of 29
Robertson v. Robertson ... ... 46, 54
Ross v. Scott & Armstrong... ... ... 24
Ross, G. E., in the Estate of ... ... 40
Rossouw v. Ressouw ... ... ... 59
Russouw, R. E., Petition of ... ... 2
Russouw, J. H., tn re ... ... ... 2
Russouw Minors, in re ... ... ... 80
Roux, J. L., tn re ... ... ... ... 49
Ronx, D., tn re ... ... ... ... 64
Savings Bank v. De Wall ... ... ... 19
Scallan's Executors v. Voortman ... ... 20
Soheepers, J. J., tn re ... ... ... 63
Sohrink, E., tn re ... ... ... ... 2
Scott Brothers v. Hirsch ... ... ... 19
Smith, J., tn re ... ... ... ... 29
S.A. Association v. Elliot ... ... ... 19
Standard Bank v. Robertson 4 Bain 19, 29
Standard Bank v. Poppe, Russouw & Co. ... 72
Bttffeok, G., tn re ... ... ... ... 34
Sturrock v. Birt ... ... ... ... 20
Swardt, de, S. J. H., tn re ... ... ... 2
Taylor & Symonds v. Sohunke ... 3, 14
Teengs v. Garlick ... ... ... ... 84
Theunissen, M. W., tn re ... ... ... 78
Thomas v. Boose ... ... ... ... 2
Thome & Stuttaford v. McNally ... ... 48
Tilney, L., in re ... ... ... ... 2
Tindall, W. A., in re ... ... ... 49
Trustee, Zulu Bishopric Fund v. Kruger ... 63
Union Bank (in liquidation) ... 8, 80, 64
„ „ v. Watson's
Heirs ... ... ... 40,7?
TABLE OF CASES.
• ••
111
PAGE
Union Bank (in liquidation), in the Estate of
F. W. Hofmeyr ... ... ... 64
Union Bank (in liquidation) v. Thompson
„ „ v. Brentnall
Van Zyl and Others v. DeBeer's Executrix 59,
Van Zyl v. Schwartz
Van Zyl, F. J, Petition of
Vfljoen, G , in the Insolvent Estate of
Vogl, J. t» re
Walker v. Cape Central Railways ...
Wallace, C. W. t in re
Ward, C. G., in re ...
.. 72
.. 76
75,78
.. 72
.. 80
18,59
.. 73
.. 57
.. 29
.. 2
Webster v. Solomon
Western Province Bank v. Malherbe
Wessels v. Basson ...
Westaysen, van der, J., in re
Wet, de, J. P., in re ... ...
Wet, de, J. C. H., in re
Whitehead, W. C, t» re
White House M. A D. Syndicate, in re
Wioht v. Rutherfoord
Wilson v. Wilson and Minnaar
Wright v. Williams
Wright, J., Dr. in the Estate of the late
PAGE
89,63
••• 68
49
2
2
2
... 21
... 72
8, 51, 59
83,57
... 1
• ••
" CAPE TIMES " LAW REPORTS.
SUPREME COURT
(IN CHAMBERS).
TUESDAY, JANUARY 6.
[Before the Chief Justice (Sir J. H. DE VlLLlERS)
and Mr. Justice SMITH.]
IN THE ESTATE OF THE LATE JOHANNES
A. LAUB8CHEB.
Minors — Application to draw from S. A.
Association sufficient funds to provide for
maintenance and education.
This wu an application by the administratrix of
an estate for authority to pay ont a certain sum of
money to enable her to send one of the minor
heirs to school. — Mr. Castens, who appeared in
support of the application, stated that the deceased
by his will bequeathed certain property to two
children, subject to a life interest in favour of the
applicant, his widow. The South African Associa-
tion held a sum of ever £1,000, for the benefit of
the minors, and the applicant being desirous of
sending one of them to school for two years, asked for
authority to draw £208 for that purpose. In reply
to the Chief Justice, the learned counsel stated he
believed the applicant wished to draw the full
amount at once, but he was not aware to what
school it was intended the minor should be sent.
The matter was referred to the Master for the
purpose of ascertaining what annual payment
should be allowed for the proper education of the
minor.
GBAAFF Y. KLEBCK.
Lease — Executable — Judgment — Act 19 of
1864— Practice.
Mr. Schreiner applied for an order declaring the
rights of the respondent under a certain lease
entered into between the applicant and respondent
jointly, executable for a judgment in a suit
between the parties. Mr. Schreiner stated that
the judgment in question was obtained in respeot
B
to the non-payment of rent upon a piece of ground
whioh was leased by the parties under Act No. 19
of 1864 from the Government, subject to certain
stipulated conditions, one of which was that the
lease could not be transferred without the consent
of the Government.
The Chief Justice remarked as the ground had
been leased subject to certain stipulations it would
depend upon the terms of the lease whether it was
an executable lease or not. His Lordship asked
whether the Registrar had been applied to for a
writ of execution?
Mr. Schreiner replied that he was not aware.
The Chief Justice asked why, if the lease was
executable, the Court should be asked to interfere,
and if it was not executable, why should it be
asked to do so ?
Mr. Schreiner said he had not been instructed
upon that point, and unfortunately his attorney
was net in court.
The Sheriff (Mr. H. Tennant>, in reply to a
question from the Chief Justice as to whether any
application of this kind had been made to him,
replied in the negative.
The Chief Justice said, supposing an application
was made for the attachment of the lease of
ground held under similar conditions to these,
whether it would be granted ?
The Sheriff said he should like to consider the
question before answering.
The Chief Justice inquired whether such a lease
could be sold as one of the rights of the parties ?
The Sheriff replied it would first of all have to
be attached by an order of the Court. According
to the instructions which had been issued, rights
of this kind were never attached without an
order of the Court.
The application was ordered to staid over until
the 12th instant.
IN THE ESTATE OF THE LATE JOHN
WEIGHT, M.D.
Mortgage of landed property to meet calls on
shares in bank in liquidation.
Mr. Castens applied on behalf of the executors
in this estate for permission to raise a sum of
money on the mortgage of landed property in the
2
estate, for the purpose of meeting calls upon
shares in the Gape of Good Hope Bank. The
petition stated that the estate was liable for oalls
upon shares in the Cape of Good Hope Bank to
the amount of £3,150, and that for the purpose
of meeting that sum an attempt had been made to
sell a portien of the landed property known as
Stewartsville, but that the highest bid which was
made was £1,100. The property had cost £2,787,
bat at the present time it was impossible to obtain
a fair price for it, and it would be an advantage to
all concerned if the property remained in the
estate. The executors were therefore desirous of
raising £1,000 upon mortgage, which would be
sufficient, with the funds now in their hands, to
pay the oalls.
The required order was made.
THE PETITION OF BOSINA E. BUSSOUW.
This was an application by a married woman
for a rule nisi calling upon her husband to show
cause why she should not be allowed to sue in
forma pauperis, and by edictal citation, fer a
divoroe. The required order was granted.
GAPE OF GOOD HOPE BANK, IN LIQUIDATION.
Company — Bank in liquidation — Compro-
mises — Confirmation postponed sine die .
Mr. Searle moved, en behalf of the liquidators
of the Cape of Good Hope Bank, for the postpone-
ment, sine die, of an application for the confirma-
tion of certain compromises which it had been
proposed by them should be aocepted. The learned
counsel explained that the application was made
owing to the existence of claims against prior
shareholders, which claims might be affected if the
compromises were sanctioned without their having
been consulted.
The order was made as prayed, and their lord-
ships adjourned.
SUPREME COURT-
monday, JANUARY 12.
[Before the Chief Justice (8ir J. H. DE
VlLLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
admission.
Mr. Charles George Ward was admitted as
advocate, on the motion of Sir Thomas Upington,
Q.C.
PROVISIONAL ROLL.
K. LITHMAN & OO. V. DAVIDSON MOBBIft.
The final order of adjudication of the defendant's
estate as insolvent was granted.
MOLLER V. ASKEW.
This matter was ordered to stand over until the
18th January.
THE WESTERN PROVINCE BANK V. D. H.
MALHERBE.
Provisional sentence for £460 on a promissory
note, less £ 10 paid on account, was granted, subject
to the production of a translation of the note,
which was in Dutch.
THOMAS V. F. J. BOOSE.
The final order of adjudication of the defendant's
estate as insolvent was granted.
FAIRBRIDOE 6 ABDERNE V. W. J. COPELAND.
Judgment for £206 18s. 6d. was granted against
the defendant in default of his appearing.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Stephanus
Petrus Louw, Johannes Hendrik Russouw, Blias
Schrenk, Lewis Tilney, Alewyn Petrus van Heer-
den, Wentzel Christopher Whitehead, Mattheys
Cornelis Lotter, Alfred Alexander, Jacobus Petrus
de Wet, Johannes Christian Hendrik de Wet,
Stephanus Janse Hendrik de Swardt, Izaac Arendse,
J.gon, and Christian Rudolf Leibenberg.
GENERAL MOTIONS.
CAPE OF GOOD HOPE BANK (IN LIQ.) V. C. M.
VOWELL.
Attachment of funds in hands of agent —
Proper form of process is to sue out
execution.
Mr. Searle prayed for leave to attach certain
funds belonging to the respondent and now in the
hands of G. W. Steytler, for the purpose of
satisfying certain calls on shares in the above
bank, of which respondent was the registered owner.
Vowell was in England, and G. W. Steytler held
his general power of attorney. He owged fifty
share*. Steytler bow held a certain amount of
cash belonging to the respondent. The order was
granted, the Court intimating that it would not
grant a similar order again, the proper form of
process being to sue out execution.
SBAAF V. KLBBCK.
Mr. Sehreiner moved in this matter, stating that
it had been partially heard in Chambers
last week. It was an application to have the
righta of one H. J. W. Klerck under a certain
lease declared executable. The lease contained a
clause stating that it was not transferable, nor
could there be any sub-lease unless the Government
consented. It was ordered that the lease be sold
j to the highest bidder whom the Government
would consent to take as a lessee.
MALCOLM V. PKINOLE.
In this matter the return day of the edictal
citation was extended, on the motion of Mr.
Sehreiner, to 2nd February, 1891.
TAYLOR AND SYMONDS V. SCHUNKE.
AttachmeDt of property adfundandam juris-
dictionem — Issue of Summons before rule
»mi had been granted — Rule discharged.
In this matter, Mr. Searle appeared for the
applicants and applied to have a rule nut, granted
on 20th December last for the attachment of
certain farms in Maclear, for the purpose of found-
ing jurisdiction, set aside. — Mr. Sehreiner appeared
for the respondent. — Lengthy affidavits were read
denying the existence of any liability by Taylor
and 8ymons to the respondent, stating that he had
been asked to furnish accounts and deliver certain
title deeds but refused to do so, and that an action
had been brought to compel him to do so. It
appeared that the summons was issued before the
granting of the rule, and Schunke must have
known of it.— After hearing counsel the rule was
discharged, the Chief Justice remarking that the
fact that the summons had been issued and service
effected should have been mentioned in the original
affidavit. It might have stopped the granting of
the rule nisi, and certainly would have modified it.
Schunke having withheld material information the
rule would be discharged.
IN THE ESTATE OF THE LATE J. W. GLYNN.
Mortgage — Raising of loan by.
On the motion of Mr. Searle, the Court ordered
the raising of a loan on mortgage of certain
property in the same. The amount to be £900,
and a bond ef £400 to be paid off from this. The
other £500 to be used for certain alterations in
drainage, Ac, ordered by the Town Council.
PETITION OF M. L. NELSON.
Funds belonging to person reputed to be
dead in hands of Trust Co. — Application
for payment of— The proper course is to
appoint an executor and administer the
estate as of a deceased person.
Mr. Juta moved for and obtained an order
authorising the South African Association to pay
out the sum of £26 5s., moneys belonging to one
J. W. Nelson, who disappeared in 1866, then being
sixty-five years of age, and had not been heard of
since. — The Court, in granting the order, remarked
the sum was small, but in similar cases where the
amount was larger the proper course would be to
appoint an executor and administer the estate as
of a deceased person.
CAPE-TRANSVAAL GOLD-MINING ASSOCIATION.
The liquidator's report in this case was con*
firmed, authorising a call of 2s. 6d. per share, and
the Court ordered the sum of £60 to be paid
to the liquidator for bis services.
THE UNION BANK (IN LIQUIDATION).
Mr. Sehreiner presented a list of compromises to
the Court, which were confirmed.
LOPEZ V. LOPEZ.
Mr. Shiel for the plaintiff ; defendant in person.
This was an action brought by the husband to
obtain a decree of divorce by reason of his wife's
adultery. The marriage was admitted, and evi-
dence was led showing a suspicious intimacy
between the wife and one Silver. Two witnesses
also gave evidence strongly supporting the alle-
gation of adultery. — The decree ef divorce was
granted.
WILSON V. WILSON AND ANOTHER.
Mr. Molteno moved to have the rule nisi made
absolute, allowing this suit to be brought in forma
pauperis,
MORGAN AND COLTMAN V. EXECUTORS OF
GREWER.
Will — Construction — " Absolute right " or
" Denned interest."
This was an appeal from the High Court ot
Griqualand West,
Sir Thomas Upington, Q.C., and Mr. Searle
appeared for the Appellants.
Mr. Schreiner and Mr. Webber for the Res-
pondents.
It was an action brought under the will of
the late Mr. Grewer, of Kimberley, in which the
present respondents were plaintiffs. The question
was whether the appellants had received an abso-
lute right to, or merely a defined interest in, a cer-
tain butchery business in Kimberley. The Court
below held they had merely received a denned
interest in, it. After hearing Sir Thomas Uping-
ton, and without calling upon Mr. Schreiner, the
appeal was dismissed, the Court holding that the
judges of the Court below had taken a correct
view of the will and codicil. Costs were ordered
to be paid out of the estate.
SUPREME COURT.
MONDAY, JANUARY 12.
[Before the Chief Justice (Sir J. H. DE
VILLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
LONDON AND SOUTH AFRICAN EXPLORATION
COMPANY V. ROULIOT.
Support adjacent and subjacent — Lease of
diamondiferous claims — Trespass — Act 19
of 1883-t-In the absence of stipulation to
the contrary in a lease the right to lateral
support exists as a natural right incident
to the lessor's land.
The Attorney-General and Mr. Searle for the
Appellants.
Sir T. Upington, Q.C., and Mr. Schreiner for
the Respondent.
The following judgments were delivered in this
appeal which was argued last term :
The Chief Justice: This Court is much indebted to
Mr. Justice Solomon for the clearness with which he
has stated the facts of this case, and expounded the
law bearing on those facts. He found it to be
established by the evidence that the defendant, as
lessee f rem the plaintiff company of olaims in the
Du Toit's Pan Mine, extending on the north to
the margin of the mine, had in March and April,
1888, removed a ledge of reef on the plaintiff
company's land from the margin of the mine. It
la this removal of reef whioh constitutes the
alleged trespass complained of in this action, and
the main, if not the sole, object of the present
appeal is to obtain a reversal of the judgment of
the Court below, by which such removal has been
held not to constitute a trespass. The Court
below found that, in the course of working down
his claims, the defendant had left a sloping
buttress of blue ground as a support against the
reef or margin of the mine, and that the effect of
removing this buttress would have been that the
reef would become dangerous, and in a few months
fall into the defendant's claims. The Court
further held that the defendant would
have been justified in removing the buttress,
and that, inasmuch as the result of such removal
must be to make the reef dangerous, he was justi-
fied io anticipating the danger by first removing
a portion of the reef at the back of the buttress.
It will be necessary, therefore, to consider three
questions, viz. : first, what is the exact legal posi-
tion of the defendant towards the plaintiff com-
pany ; second, is the defendant entitled to remove
ground from within his own claims without regard
to the effect which such removal may have upon
the adjoining land belonging to the plaintiff com-
pany ; and third, if the defendant is bo entitled
may he go a step further and break down from the
adjoining land such ground as would, if unre-
in oved, prove an obstacle to his removing the sub-
porting ground from his own claims by the open
system of mining. The answer to the first ques-
tion depends upon the terms of the lease made in
favour of the defendant on the 26th ef August,
1886. The lessors grant, demise, and lease the
claims, " with full and free liberty, lioence and
authority to the lessees to dig and search
for diamonds and precious stones in such
claims, subject to, and in accordance with,
the rules and regulations now in exist-
ence, or whioh hereafter may be made
by the Government, for the management of
mines of this class within this colony." No rules
or regulations affecting the points in dispute have
been produced or relied upon, nor does the juris-
diction of the Mining Board enter into the con-
sideration of this case, as it did in another case
recently decided by this Court. The Inspector of
Claims, in his evidence, said that there is a regu-
lation of the Mining Board dealing with the work-
ing of reef whioh has been declared dangerous by
the Mining Board, but he did not say that the reef
in question had been so declared dangerous, nor
did he produce the regulation. Subject to any
duly-made mining rules and regulations, the
relation between the plaintiff company and the de-
fendant is that of lessor and lessee for a term of
five years, with a perpetual right, on the part ef
the leasee, his heirs and assigns, to renew the lease
so long as he or they perform the covenants
thereof. The lessee, however, has far larger rights
than the ordinary lessee of land, for he may dig
5
and search for diamonds in his claims, and he may,
under the articles of agreement bearing the same
date as the lease, remove the soil from the claims
to depositing floors outside the mine which
are provided by the plaintiff company for the
purpose. 80 large are the rights of the claim-
holders that they are referred to in Act 19 of 1883
as owners, bat, as was pointed ont in " London and
B. A. Exploration Company v. Bultf ontein Mining
Board" (7 Juta, 49), the Legislature did not intend
to confer upon them absolute rights of ownership.
What they own is the right to dig for and keep the
diamonds and precious stones found. For that
purpose the claims are subject to a burthen
analogous to a servitude, but instead of the burthen
being due, as in the case of pradial servitudes, to
the proprietor or occupier, as such, of another tene-
ment, it is due to the lessee or occupier himself of
the claims. For the due and efficient exercise of
his mining rights the lessee, as I have already
remarked, may remove ground from his claims, and
the next question is whether such right of removal
is limited by any right on the part of the plaintiff
company, as owner of the adjacent land, to support
for such land from lateral pressure. The question
whether the right to such support is recognised by
our law has been left undecided in previous cases
in which it has been discussed in this Court, but
it ought no longer to be left in doubt. The
theory of the law is that the owner of land owns
it upwards to the skies and downwards to the
centre of the earth, but it is obvious that his
exercise of the rights of ownership are practically
confined to the surface and its neighbourhood
above and below. Even at or near the surface his
rights are not unlimited, for they must be exercised
with due regard to the corresponding rights of the
owners of adjoining lands. He cannot, for in-
stance, abuse his rights by creating a nuisance on
his land which is dangerous to the health of his
neighbour. If a perennial stream of water flows
over his land the water is, in theory of law,
considered part of his land, but he cannot, by
appropriating all the water, deprive the lower
proprietors of that reasonable use to which the
natural position of their land equally entitles
them. On the other hand, the lower proprietor
must also accept the disadvantages attending the
position of his land, and may not, as pointed out
in M Ludolph v. Wegner " (6 Juta, 193), dam up
the water so as to throw it back to the injury of
the upper proprietor. The upper proprietor in the
one case, or the lower proprietor in the other, may
deem it most essential for the improvement and
cultivation of his own land to appropriate or dam
up all the water, but if, in so doing, he trenches
upon the corresponding rights of his neighbours
the law steps in with the rule : " Sic enim debere
quem meliorem agrum suum faoere, ne vicini
deterierem faeiat." This rule, within reasonable
limits, is of wide application. It is obvious that
if my neighbour were allowed to dig a deep trench
within an inch of my boundary he would have it
in his power seriously to disturb my rights of
ownership. To prevent such a disturbance minute
regulations were laid down as early as the days of
Solon for the guidance of Athenian conterminous
proprietors. A law enaoted by Solon reads as
follows : " If anyone affixes a fence in his ground
near to another man's land let him not trespass
the boundary-line ; if a walled enclosure, let him
leave the space of a foot ; if, however, a house,
two feet ; if he digs a grave or a trench let him
leave as much space as the depth ; and if a well,
let him leave the width of a pace." This law,
according to Gains (Dig. 10, 1 — 13), was taken over
in its entirety into the body of Roman laws.
Groenewegen, in his commentary on the text,
speaks of the law as obsolete, but only because, in
his time, special provisions existed in different
parts of Holland defining the spaces which
conterminous proprietors must leave between
buildings. Neither he nor Voet (10, 1 — 12) refers
specially to trenches or other excavations, but, the
principle as to the right of support being once
admitted, the removal of such support followed by
damage must have been a wrong for which the
action in factum lay. It is certainly an extraordi-
nary circumstance that there should be such a
dearth of authority in the Dutch law-books upon
this question of lateral support. The question has
probably never been one of practical importance,
seeing that there are no mines of any extent in
Holland, and the necessity for deep excavations
must seldom have arisen. In the absence of direct
authority, this Court may well be guided by well-
established principles of the Roman law and of
modern systems of law, provided they do not lead
us to conclusions inconsistent with the Dutch law.
The Cede Civile of France (Art. 674), following
the Roman law, enacts that " whoever digs a well
or ditch near a wall must leave; the space
prescribes by law and custom in this respect, or
construct the works prescribed by law to prevent
injury to his neighbour." In commenting upon
this article, Pardessus says : " By purity of reason-
ing, the owner of land who is desirous of quarrying
on his own property for stone or sand, or similar
materials, must not open the earth at the extreme
point which separates his land from that of his
neighbour, and continue to excavate perpen-
dicularly, because his neighbour's land, thus
deprived of support, would be in danger of falling
in." The law of Scotland was discussed by the
House of Lords in " Caledonian Railway Company
v. Sprat " (2 HoQ. 449), and Lord Cranworth, in
giving his judgment, said : "If I am right in
saying that by his conveyance Mr. Sprat conveyed
to the company, not only the land to be covered by
the railway, but also, by implication, the right to
A
all necessary support, then he cannot, by reason of
his having reserved the mines, derogate from his
own conveyance by removing that support. . . .
I may add that $he subject of the right of the
owners of the surface to adequate subjacent and
adjacent support has, on several recent occasions,
been discussed in the English Courts. The
principles which there govern the decisions were
not derived from any peculiarities of the
English law, but rested on grounds common to the
Scotch, and, I believe, to every other system of
jurisprudence." In England no department of
law has reoeived more careful consideration from
the Courts than that which relates to the relative
rights and obligations of the owners of the surface
and the owners of mining rights. All-important
though the different mining industries there are
to the wealth and prosperity of the country, the
rights of the owners of the surface to support
from adjacent as well as subjacent land have
always been carefully guarded. The subject was
incidentally discussed in the late Appeal Court of
this colony in " Murtha v. Von Beek" (1 Buch.
Ap. Ca. 121). That, however, was a case in which
the relative rights inter te of the claimholders in
a diamond mine were in question, and it was held
that they were not entitled to the common law
right of lateral support as against each other. The
decision was founded upon the admitted practice
of the diggers from the commencement of their
common enterprise, and upon a previous decision
ef the Appeal Court to which I was not a party.
In the subsequent case of the " Griqualand West
Company" (1 Buch. Ap. Ca. 263), I pointed out
the difference between claimholders and the
present plaintiffs, who, as owners of the soil, did
not hold themselves out as diggers, and I remarked
that the Court would not be justified in straining
the law so as to place the plaintiffs on the same
footing, in regard to the liabilities attaching to
their land, as the olaimholders. It is clear, there-
fore, that the case of " Murtha v. Von Beek "
offers no precedent for decision as to the rights ef
others than claimholders. In the subsequent case
of " HcFarland v. De Beer's Mining Board (2 H.
C., 898) the High Court of Griqualand held that
as between the owners of the adjoining properties,
Bultfontein and Vooruitzicht, both of whom had
issued licences for mining on their respective
properties, they were entitled to lateral support
from each other's land. " Is there anything," said
Jones, J., " in the mere fact that the licence is for
the purpose of mining, which changes the legal
rights these owners possessed ? I confess I cannot
see in what manner this would make a difference."
In the present case we have to consider the rights
of the lessors — the owners of the land surrounding
the claims—as against the lessee, the holder of
those claims. The important circumstance in
favour of the claimholders* alleged right to remove
the lateral support from the margin of the mine is
that the lease itself, read by the light of the
articles of agreement, gives them the right to
remove the soil from their claims on to the deposit-
ing floors for the purpose of winning their
diamonds. "That being so," said Mr. Justice
Solomon, " can it be maintained that the principle
of lateral support can be made to apply to a case
like the present ? The nature of the tenure of the
claims is to work them down ; the owners of the
soil lease the claims for that specific purpose ; the
natural result of so working the claims is to
deprive the adjoining land of lateral support ; and
it appears to me, therefore, that this tenure
is quite inconsistent with the right to lateral
support which is now claimed by the plaintiff
company. Had the company at the time when
they granted the claims in the mine really in-
tended that the surface of the ground outside of
the mine should be preserved in its natural con-
dition I think they would have expressly
stipulated for this in the contracts whioh they
made with the claimholders." There is certainly
much force in this reasoning, but, after anxious
consideration of the whole case, I am of opinion
that the reasoning is not conclusive. If the right
to lateral support exists as a natural right incident
to the plaintiffs' land — as in my opinion it does —
the parties to the eontraet must be deemed to have
contracted with a view to the continued existence
of that right. If they had intended that the
plaintiffs should be deprived of this natural right
ought not the defendant to have stipulated to that
effect ? I am of opinion that in the absence of
such a stipulation the presumption is in favour of
an intention to preserve a well-established natural
right of property rather than to part with such a
right. What was intended to be removed t was the
soil in the claims and not the soil surrounding the
claims, and if the claimholders find that it is
impossible for them to remove the soil within the
margin without disturbing the soil beyond, they
have only to abandon their claims as being no
longer workable. The Court has never gone so
far as to hold that there is any obligation upon
claimholders whose claims serve to support the
surrounding non-diamond if erou a ground to work
down such claims. The leases are renewable, but
the lessees are not bound to renew them, whereas
the lessors are bound to renew so long as the
lessees are willing to perform the covenants. The
arguments are certainly very evenly balanced, but
upon the whole I am of opinion that independently
of mining regulations, none of whioh have been
put in, er of special mining customs, none of whioh
have been proved, the right given to the defendant
to win diamonds from the claims must be taken to
be subject to the plaintiff company's right of
support. If I am correct in this view it would
follow that the defendant was not justified in
working down any portion of the reef in anticipa-
tion of the danger whioh would ensue from his
rsmeving the buttress supporting the reef. But in
view of the strong arguments in support of the
defendant's right to remove the support it would
be well to consider the third question, viz., whether,
assuming such right to exist, the defendant can,
before removing the diamondiferous soil which
sets as a support to the margin of the mine, antici-
pate the danger from reef falling into his mine by
removing the reef of which that margin consists ?
Upon this question Mr. Justice Solomon says:
" It would be absurd to hold that the defendant in
working down bis claims might, by removing the
lateral support from the margin of the mine, cause
the ground to fall into the mine, but that he had
no right to ge upon the plaintiff company's land in
order to remove the danger. Once granted that
there is no right to lateral support, it seems to
follow, as a matter of course, that the defendant is
entitled to de all necessary work upon the margin
of the mine in order to prevent a fall of ground
into his claims and the probable stoppage of his
works." He then refers to a dictum of mine in the
Griqualand West Company's case, which I have
already cited, to the effect that it might fairly be
taken that the owners had admitted the right of
the claimholders to remove obstacles from the
owners' own claims to the proper working of other
claims. It would perhaps have been wiser en my part
not to have uttered an unconsidered dictum which
was not required for the elucidation of the case,
but I am by no means satisfied that the dictum
itself was unsound. In a previous portion of the
judgment I had referred to the distinction between
owners and diggers and between the mine itself
and the land surrounding it. A recognised practice
had existed under whioh " when a claim had been
abandoned the owners of the adjoining claims had
the right to work down those abandoned, and then
to register a lien for expenses against those claims,"
and it was in reference to this practice as much as
to the terms of the lease that my remark was
made. The resumption of a diamondiferous claim
by the company does not impose on the company
the duty of becoming active miners, but may well
subject them to the passive obligations to which
the previous holder of the claim had been subject.
I cannot, however, agree with the view of the
Court below that " if a olaimholder was justified
in going upon the plaintiff company's claims in
order to remove danger it would follow a fortiori
that he would have the right to do similar work on
the non-diamondif erous reef at the margin of the
mine." The sole and ostensible object of the
lease of claims is to permit of their being worked
down in the search for diamonds, and the danger of
any snch leased claims being allowed to stand as a
menace to the adjoining claims could not have
^•en contemplated by the parties to the leases.
But nothing is said in the leases as to the land
surrounding the claims, although the parties must
have known that sooner or later it would, unless
sufficiently supported, menace the adjoining claims.
I conf eRS I do not perceive the absurdity of holding
that the defendant may remove lateral support
from the margin of the mine and yet may not go
upon the plaintiffs' land for the purpose of break-
ing down the margin itself. In removing suoh
support he commits no trespass, but only takes
away what, according to my present assumption,
his lease authorises him to take away.
In breaking down the reef without the owner's
consent he commits a trespass which nothing but
absolute necessity can justify. An obligation
arising from necessity cannot be enlarged beyond
what necessity requires. Where a person lets a
portion of his land with no outlet except over the
unleased portion, the lessee is entitled to a right of
way over such unleased portion; but, as was
pointed out in "Peacock v. Hodges " (Buch. 1876,
p. 69), •' the right of road by necessity does not
give a right to the enjoyment of a greater servitude
than the absolute necessity of the case requires."
So strictly was this principle applied in Holland,
in the case of a sale, that according to Van
Leeuwen (Comm. 2, 21, 12), "if the land had
been so situated that there was an outlet by land
in front and by water behind, then the land sold
must be satisfied with the outlet by water." The
rule applicable to an ordinary lease would also be
applicable to a mining lease. The lessee has, as
incident to his mining rights, the right of doing
upon the unleased portion whatever is necessary
for the enjoyment of such mining rights, but he
can do no more. He may even fix such machinery
as may be required for drawing the soil from the
mine, but if the duty of allotting sites for such
machinery belongs to some public body, like a
Mining Board, then, according to a recent decision
of this Court, he is held strictly to his contract,
and would be guilty of trespass if he erected
buildings and machinery without the consent either
of the owner or of the Mining Board. Under the
Roman law the owner of a dominant tenement
had the right to do what was requisite for the
enjoyment of his servitude, but this right was
subject to the condition that he imposed no greater
additional burthen upon the servient tenement
than was absolutely necessary. If, for instance,
he had a right to lead water over the servient
tenement by means of pipes, he could not substitute
a conduit of stones (Dig. 39, 3, 17, sec. 1), and he
was bound not only to exercise ordinary skill and
care, but also to repair, as far as he could, what-
ever damage he may have done to the servient
tenement (Dig. 8, 2, 18). In the present case, it
has been contended, on behalf of the defendant,
that it is necessary for the due enjoyment of his
mining rights that he should be allowed to break
8
down portion of the reef on the plaintiff's land.
The argument is— and this is the most foroible
way of stating it — that it would be a mockery to
say that he has the right to remove the support if
he has not the auxiliary right to do a necessary act
on the plaintiff's land as a preliminary to such
removal. The answer is two-fold. In the first
place, the defendant has not stipulated, as he
might have done, for a right to break down the
reef as well as to remove soil from the claims. In
the next place, it is dear that, by means of under-
ground mining, the soil can be removed from the
claims without first removing part of the reef.
The mode of mining may be more expensive than
open workings, but it is admitted to be quite
practicable. It is said, however, that above, and
not underground mining was contemplated by the
parties. This may be an argument, although not a
oonclnsive one, in favour of the defendant's right
to remove lateral support from the reef, so long as
he remains within his own limits, but it affords no
excuse for trespassing beyond those limits. Such
a trespass, without the consent of the owners, or
of some independent public body, was as little
contemplated as underground mining. I repeat
that, in the form in which the appeal comes before
us, we must decide the case without reference to
any regulations which may possibly modify the
rights of the parties. In the absence of such
regulations, or of any mining customs, or of any
resolution of the Mining Board, I am of opinion
that no right arising out of necessity exists to
remove any portion of the plaintiffs' land, so long
at all events as the defendant can by a different
but practicable system of mining dispense with the
necessity of such removal. The argument as to
the reef being a nuisance was not seriously pressed.
If it was a nuisance it was not one which required
abatement without delay, and the proper course
would have been to apply for an interdict against
its continuance, or to bring an action for its abate-
ment ; but it is not pretended that such an applica-
tion or action could have been successful. I regret,
therefore, that I cannot agree with the conclusions
of the Court below upon this part of the case. If
the removal of the reef was a trespass it would
follow that the deposit of the removed reef upen
floors let for the purpose of depositing soil from
the claims was not strictly authorised by the terms
of the articles of agreement. The damage done
was not great, and seeing that the plaintiffs did
not object to the removal of the reef till a consider-
able part of the work had been done, and that
their main object is to establish their legal rights,
we are of opinion that a judgment for £6 damages
and costs would have been sufficient. As to the
question whether diamond if erous Boil was removed
from the plaintiffs' land, the Court below found
that the 17,000 loads were really removed from the
defendant's own claims, and there is evidence to
support the finding. The appeal will therefore be
allowed, and judgment entered for the plaintiffs
for £5 damages, with costs in this Court and in the
Court below.
Mr. Justioe Smith : That one should so use hit
own property as not to interfere with the rights of
another is a maxim adopted in the jurisprudence
of every civilised nation. One who has rights
connected with land adjoining that of another
cannot in the exercise of those rights do anything
that will cause his neighbour's soil to (subside or)
fall down. In other words, the owner of land has
the right of lateral support from his neighbour's
land. This right may of course be abandoned by
agreement. Where the owner of land grants to
another the right to dig and search for minerals on
a portion of his land the grantee must exercise his
right so as net to injure the adjoining land of the
grantor, provided there is no clause in the agree-
ment which permits him to work in such a manner
as may necessarily cause injury, or provided the
only way in which the work could be done was
such that injury would probably arise. In this
case there is no such clause in the lease, and there
is no evidence to show that when the leases were
granted the necessary or probable consequence of
working in a proper manner under the rights
given would cause reef to fall in. There was no
obligation on the plaintiffs to remove the reef in
order to prevent its falling in ; the obligation was
on the defendant, if he chose to work his olaim
by open mining, to leave such a lateral support as
would prevent the plaintiffs' ground falling into
his claims. The defendant therefore committed
a trespass in going upon the plaintiffs' land and
removing the soil, and is liable in damages for the
injury caused. I concur in the estimate of that
damage stated in the judgment of the Chief
Justice. Even if there had been an obligation
upon the plaintiffs to remove the soil so that it
should not fall into the defendant's claims, in my
opinion the defendant would bave had no right to
go upon the plaintiffs' land and remove it. By the
law of England, as laid down in the older cases, if
the owner or occupier of land creates a nuisance
upon his land, his neighbour may enter upon his
land and abate it, but the tendency of the more
recent law is to modify this rule. If the nuisance
has been oreated by another person, the neighbour
cannot justify his trespass unless he has previously
given notice to the owner or occupier. Our law
does not allow a man to take the law into his own
hands, except in cases of necessity. If one creates
a nuisance dangerous to health unless instantly re-
moved, one likely to be injured would be justified
in abating it, but in ordinary cases one is not
justified, in my opinion, in entering upon another's
and even to abate a nuisance.
Mr. Justice Buchanan : To the plaintiffs' olaim
for damages for trespass on their ground adjoining
9
the Da Toit'i Pan diamond mine, the defendants
plead justification, alleging that in the course of
working the claims in the mine leased to the
defendant company by plaintiffs, certain neigh-
bouring and adjoining ground, being the main reef
of the said mine, became threatening and dangerous
to the workings of the said company, and that the
defendants thereupon of necessity removed the
said ground to ensure the safe working of the said
claims as by law they were entitled to do. The
plaintiffs are the owners of the mine ss well as of
the surrounding property, and by the lease of the
claims within the mine they gave the defendant
company as lessees full and free liberty, licence
and authority, to dig and search for diamonds and
precious stones in such claims, subject to and in
accordance with the rules and regulations now in
existence or which hereafter may be made by the
Government for the management of miaes of this
class. According to the judgment in the Court
below the plaintiffs contended generally that claim-
holders, in the course of their work, have no right
to deprive the owners of the soil of their common
law right to lateral support. Now, whether or not
the doctrine of lateral support is known to our law
has never, as far as I can discover, been definitely
settled by any decision of the Supreme Court ;
though it has been referred to in several cases, and
was assumed in the case ef "McFarland v. De
Beer's Mining Board" (2 H.C. Rep., 398). As
might be expected, the Dutch authorities are not
explicit on the point. Indeed, in the Court below,
it was argued that the only right to lateral support
known in Roman-Dutch Law was the servitude of
supporting a weight. Still, after considering the
arguments so fully set forth by the Chief Justice,
the dicta in the several reported judgments, and the
principles upon which the doctrine is founded, I
think we ought now to hold that it is part of our
law. The maxim sic utere tuo ut alienum rum ladas
may be said to contain t he germ of the principle of
lateral support. Assuming, then, the existence ef
the right of lateral support in ordinary cases, we
have the decision of the late Court of Appeal in
"Murthav. Von Beek" (1, Ap. C. Rep, 121),
affirming that as between claimholders themselves
in this very mine, the rule eannot be applied.
This being s*, that decision turned simply
on the question whether or not there had
been negligence on the part of the claimholder.
The Chief Justice said: "The counsel for the
appellant admitted that there is an implied obliga-
tion upon every claimholder, who holds himself
out as a digger, to use reasonable diligence in work-
ing down his claims, a» d not to lag behind unneces-
sarily to the injury and detriment of his neigh-
bours. 1 do not see how the principle of lateral
support embodied in the English law can be made
to apply to cases of this kind. Even if it be the
law of the Colony that a man is entitled to lateral
C
support, I do not see how it can apply to oases
where a person, having a claim surrounded by
neighbours who were not as diligent as he was,
might have to leave extensive lateral support to
each of those neighbours, leaving very little
ground for himself to work in." All the judges
concurred in this finding, Barry (Judge President)
expressly adding: "I cannot assent to the
proposition that lateral support is a duty in the
mine in question." There is, however, a material
difference between the position of claimholders
among themselves, persons who have leased claims
in a mine for the express purpose of working them
down, and the owners of the soil who, as the
plaintiffs have always done, have persistently
refused to take upon themselves any responsibili-
ties beyond that attaching to them in their
capacity as lessors. That was indicated in the
cross appeals in the cases brought by the
Griqualand West Diamond Mining Company
against the present plaintiffs (1 Buch. Ap. Cases,
239). It may be deduced from those cases that
when claims which have been leased have been
abandoned and have reverted to the owners of the
soil, that such owner is not bound, as a claimholder
would have been, to work down such abandoned
claim or to remove debris falling therefrom.
That position was recognised by the subsequent
legislation contained in Act No. 12, 1889, which
puts the owner of the soil to his election to
undertake the liabilities of an ordinary claim-
holder, or to allow the Mining Board to step in,
but unless the owner of the soil consented no such
burden was cast upon him. If, then, no liability
attaches to the lessor in respect of abandoned
claims in the mine, it is an a fortiori proposition
that none attaches to him as owner of land outside
the mine which has never been leased at all. The
fact that there was no obligation attaching to the
owner in respect of land outside the mine would
give force to the contention that he would be
entitled to his common law right of lateral support
to keep that land intact. But, on the other hand,
we find that though there is no obligation on the
owner even in respect of abandoned claims, yet he
has no right of lateral support in respect of such
claims. The same rule might not illogically follow
in respect of land adjoining claims which he had
leased, as obtained in regard to abandoned and
therefore unleased claims. I find some difficulty
in this case caused by the absence of evidence on
points which seem to me material to a correct
decision of this important question. We do not
know what rules and regulations, referred to in
the lease, are in existence. Though there is
evidence that the defendants acted in a thoroughly
proper miner-like way, and properly carried out
their operations, no custom has been pleaded.
The learned judge in the Court below states that
it is in evidence that from the opening of the
10
mine in 1871 up to the present time the universal
and approved method of mining in this mine has
been by the method of open working, and he says
that it is also clear that this method was in
contemplation of the parties at the time when
the present lease of the claims was entered into.
Though the record is not very dear in supporting
this finding, it is no doubt supported by the fact
that annexed to the lease of the claims themselves
there is an agreement allotting to each olaimholder
a depositing-floor upon which to place the soil
removed frem the claims. It is also in evidence
that although during the past working nearly all
the margin of the mine had fallen into the mine,
no objection was ever before raised by the
plaintiffs. From MoFarland's case, already
referred to among others, it appears that the
Mining Boards at certain ef the Griqualand West
mines have power to tax the claim hold ere to raise
funds for the express purpose of removing the
reef ; and further, in arguing this case, counsel on
both sides have not dealt with this question, the
Attorney-General, for the plaintiffs, asserting that
the question of lateral support had nothing to do
with the issue ; and Sir Thomas Upington, for the
defendants, remarking that the question of the
right of lateral support need not be argued as
between the company and its lessees. Under
these oiroumstances I am not now prepared to
decide that the plaintiffs are entitled to lateral
support for the reef round the mine, from claims
in the mine leased by them for the express purpose
of being worked down and the soil therefrom
removed. But T think that the Attorney-General
correctly contended that there was a missing link
in the chain of the argument in the lucid judg-
ment of Mr. Justice Solomon, viz., that whether or
not there was a right to lateral support, as there
was no obligation on the owner of the soil to do
anything, but that he was entitled to lease his
ground round the mine in a state of nature, and
as he had not granted to the lessee of the claims
any right to work elsewhere than in the claims
leased, there was a trespass committed when such
lessee went outside his claims, and worked down
the reef situated beyond them. The learned
judge says it weuld be absurd to hold that the
defendant in working down his claims might,
by removing the lateral support from the margin
of the mine, cause the ground to fall into the
mine, but that he had no right to go upon the
plaintiff company's land in order to remove the
danger. But this absurdity is no answer, if sueh
is the position contended for by the parties. This
difficulty was evidently felt by the defendants,
for they attempted to justify their conduct on the
ground of necessity. But here again the defend-
ants seems to ire to have failed. To support
such a plea there must be very much stronger
evidence than has been led in the case, and we
cannot overlook the fact that in other mine*
this alleged necessity has been overoome by
adopting a different manner of working. As
the case stands, it seems to me that the appeal
must be allowed, and the judgment entered in
the Court below for the defendants set aside. No
substantial injury has been sustained by the
plaintiffs, and I would prefer, in the absence ef
any proof of custom, or of any evidence of any rule
or regulation such as that contemplated by the
agreement between the parties, and without full
argument of the question of the right or otherwise
to lateral support, that the judgment should be
altered to one of absolution from the instance.
In strictness, however, the onus was on the
defendants to justify their conduct, and, having
failed to do so, the plaintiffs are entitled to a
judgment, which would carry costs, both in the
Court below and on appeal.
SUPREME COURT,
TUESDAY, JANUARY 13.
[Before the Chief Justice (Sir J. H. DE VlLLIERS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
mabai6 v. van bensbubo.
Will mutual — Codicils made subsequently to
testator's death — Exception.
Where under a mutual will a daughter
had acquired a " vested interest " her exe-
cutors are the proper persons to sue and not
her children.
Mr. Searle, with him Mr. Graham, for plaintiff.
Mr. Schreiner, with him Mr. Molteno, for the
defendant.
This was an action commenced in the Circuit
Court of Mossel Bay, last October, to re-
cover a share of an inheritance alleged to be due
under the will of the late Mr. J. van R ens burg and
his wife. From the mutual will made in 1876 the
survivor was appointed executor, and was to have
possession of the estate during his or her lifetime.
After the death of the survivor the joint estate was
to go to their children, certain legacies were given,
and in the event of the children dying before " us,
the testators," their lawful descendants were in-
stituted heirs. The plaintiff's wife was a child of
S. M. van Rensburg, who married one Wilkinson,
S. M. van Rensburg being a daughter of the
testators. The testator died in 1881, S. M. van
11
Rensburg (Mrs. Wilkinson) died in 1887, and in
May, 1887, subsequently to the death of IS. M. van
Rensburg, the testatrix died. Certain codicils had
been made by Mrs. Van Rensburg, the testatrix,
subsequently to testater's death, and it was alleged
that she having adiated these codioils were invalid
as interfering with the provisions of the mutual
will The Court, however, decided the case on an
exception taken to the summons. The exoeption
was that, from the above facts, Mrs. Wilkinson had
taken a vested right under the will, and that
her executors were the proper persons to sue,
and not her children. The Court held that the
wards 4t before us, her testators," meant both
testators, and Mrs. Wilkinson, the moment she
survived her father, though she predeceased her
mother, took a vested interest, and that therefore
her executors would have been the proper persons
to have brought this action. In the case of her
insolvency her trustees would have been entitled
to any amount due to her under the will.
MOLLBK V. ASKEW.
Insolvency — Sequestration of estate — Pro-
visional order set aside on want of proof
of insolvency — Act 38 of 1884.
This was an application to have the provisional
order of sequestration against the respondent's
estate made final. Mr. Schreiner appeared for
the applicant; Sir Thomas Upington, Q.C., for
the respondent. The provisional order was granted
on 7th January, and made returnable on the 12th,
by Mr. Justice Smith. The respondent was in-
debted on a mortgage bond on which an instalment
of £200 became due on 81st December ; the
defendant appeared unable to pay. From the
affidavits it appeared that H. P. Moller, on behalf
of his son, wrote asking for the payment of the
instalment. In reply a letter was written by
Askew, stating his inability to pay. This letter
was annexed to the original petition. Askew, on
Holler's calling on him, showed a statement in
which he had a considerable credit balance. Moller
said he would have to write to his son, and the
first notice Askew had of any proceedings was by
an attachment by the Master's messenger. In
consequence he was not able to get at his books,
but stated that, in addition to the statement
already shown, he had property worth £400 and
£120, besides the business premises worth £1)200*
Askew further stated he could easily have raised a
loan of £900.-— The Chief Justice to Mr. Schreiner :
The Court has again and again held that under the
Act of 1884 there must be very dear proof of in-
solvency.— Mr. Justice Smith: The only reason
why I granted the petition was on account of the
letter annexed. If the statement
annexed as it should have been I should^Je^ainly.
not have granted the order. — The Chief Justice :
The proper course would have been to have sued,
and on a return of nulla bona the order would have
been made. After hearing Mr. Schreiner, and with
out calling upon Sir Thomas Upington, the Court
set aside the provisional order with costs, the Chief
Justice stating that the petitioner was bound to
prove the insolvency, and the fact that the respon-
dent was unable to pay. In the present case the
petitioner made a statement which induced the
learned judge to grant the order, and withheld a
statement which showed a credit balance due. On
this no proper conclusion could be drawn, but the
additional evidence clearly shows there is no
insolvency. The application should never have
been made, and must now be set aside with costs
against the applioant.
SUPREME COURT
(IN CHAMBERS).
TUESDAY, JANUARY 20.
[Before the Chief Justice (Sir J. H. DB
Villiebs), Mr. Justice SMITH, and Mr.
Justioe Buchanan.
admission.
On the motion of Mr. Molteno, Mr. William
Molteno Bisset was admitted to practise as a con-
veyanoer.
IN BE ESTATE OF LATE W. WESLEY MARTIN.
Mortgage of landed property in estate of
deceased person to pay off bond and other
debts.
Mr. Castens presented an application by the
executors of the above estate for leave to mortgage
the landed property of the estate in order to raise
a loan to pay off an existing bond for £1,400 and a
debt of £600 due to the estate of the late John F.
Martin, and for an order that the oosts ef the ap-
plication might be paid out of the estate.
The Court granted the order.
IN BE THE ESTATE OF THOMAS HALL,
DECEASED.
Mortgage of landed property in estate of
deceased person to meet calls on shares in
bank in liquidation.
Mr. Watermeyer moved, on behalf of the execu-
i
12
tors of the above estate, for leave to mortgage
certain property situated in Hof-street to raise
necessary funds to pay calls in respect of Union
Bank shares.
Order granted.
IN RE ANNA SOPHIA HAMMAN, AN ALLEGED
LUNATIC.
Mr. Jtita moved for the appointment of a curator
ad litem, and for leave to give evidence on affidavit.
The Conrt granted the order, and appointed the
Beaident Magistrate of Victoria West curator
ad litem, and allowed the evidence of Dr. Drew to
be given on affidavit.
THE CAPE OF GOOD HOPE BANK, IN
LIQUIDATION.
Mr. Searle, on behalf of the liquidators of the
above bank, moved for the confirmation of
certain compromises effected by the liquidators.
The Court granted the order, subject to the list
of compromises being amended and fuller details
given.
THE PAABL BANK, IN LIQUIDATION.
Mr. Schreiner moved, on behalf ef certain share-
holders and customers, for leave to inspect the
books of the bank ; to make extracts from the
same ; and to be assisted by an accountant.
Mr. Searle, for the offioial liquidators, consented,
and the order was granted.
THE PAABL BANK, IN LIQUIDATION.
Liquidators' First Report.
Mr. Schreiner presented the first report of the
liquidators of the Paarl Bank, as follows :
The official liquidators were appointed by the
Honourable the Supreme Court on the 20th De-
cember, 1890. An examination into the affairs of
the institution has been made by them as well as
the limited time since their appointment and the
means of information at their disposal would
allow. The result is as follows :
The liabilities of the bank, according to the
books on the 6th December last, were, exclusive of
shareholders* capital and reserve funds, as fol-
lows :
Deposits, fixed ...£148,266 11
Deposits, floating ... 44,022 16 8
£187,278 17 2
Notes outstanding 4,170
Unpaid dividends 850 18
Loan 26,760
£219,049 10 2
£993 7 3
The assets of the bank the liquidators estimate
as under :
Coin in the bank's
coffers
Balance in and notes
of other banks ...
Estimated present
value
Bills and notes un-
der disoount
Bills and notes due
£1,127 12 1
992 12 1
132.212 16
56,664 9 1
7,620
3,318
£188,767 4 1
Estimated present
value
Advances against
securities
Estimated present
value
Bank premises
Estimated present
value
Landed property ... 2,871 12
Estimated present
value '
Mortgage bonds ... 33,394 4
Estimated present
value
Shares ...
Furniture
Estimated present
value
Loans ... ...
Estimated present
value
67,451 13 6
1,914
334 17
9,300
2,418
2,500
1,575
24,600
100
9,300
£109,980 12 10
This result is ascertained after making allow-
ance for such bad and doubtful debts as at present
can be estimated, and shows a deficiency of
£109,068 17s. 4d. Owing to the position of the
debtors, and the nature of their assets, it is hardly
necessary to remark that great care and caution
will have to be exercised in dealing with these
assets, the recovery of which must extend over
many years, unless an immediate realisation be
decided on, which mode the liquidators are ef
opinion is dangerous, and will probably lead to
very serious loss. It is a matter for regret that the
directors did not several years ago make a valua-
tion or estimate ef their assets ; the results would
have convinced them of the very unsatisfactory
state of affairs.
A very large proportion of the bills at present
under discount is in connection with gold scrip
transactions, the value of the sorip attached to
these bills being at present merely nominal, clearly
showing that the directors, taking into considera-
tion the small capital of the bank, viz., £13,810,
have been overtrading to an unjustifiable extent.
u
From the 30th June, 1890, to the date cf stoppage,
the 6th December last,
The liabilities of some of the
directors increased by £11,481
That of the cashier and ac-
countant by ' 7,591
Joint liability of cashier,
directors and others 8,871
22,448
At the closing of the bank's
doors :
The joint liabilities of some of
the directors amount to ... £88,804
Of the cashier 9,657
Of the cashier jointly with others 9,044
Of the accountant 7,942
60,447
—equal to about one-third of the total amount of
the bills under discount, and about five times the
amount of the bank's capital.
It is remarkable that in the published half-
yearly statements of the bank, notably that of the
30th June last, the overdue hills figure at
£4,889 19s. lid.; the overdrawn accounts £1,979
14s. 8<L, whereas at the date of the stoppage the
overdue bills appear at £56,554 9s. Id., and the
overdrawn accounts £5,799 14s. 3d.
This is explained by the fact that at or about
the period of the publication of the half-yearly
statements required by law, nearly all overdue
bills were renewed, in some instances the discount
being added to the renewals ; the overdrafts were
extinguished by the acceptance of promissory notes
from the debtors irrespective of their financial
position. This practice appears to have been in
vogue for some time past. Had a proper system
of audit inspection been followed, the liquidators
consider that the present deplorable state of affairs
could have been averted.
The liquidators, though they have not had full
time to go thoroughly into the conduct of affairs,
have nevertheless seen sufficient to satisfy them
that gross and serious errors of judgment were
displayed in the management of the bank's affairs,
and that the directors have failed to make suffi-
cient provision for the losses likely to arise on
the very large amount of bills under discount.
Although it ought to have been obvious heavy
losses would occur, no proper provision was made
fer the same, nor was any reference made thereto
in the past annual report laid before the share-
holders. The directors, instead of oonfining them-
selves to sound legitimate banking, made consider-
able advances on securities having only speculative
values. Another injudicious act on the part of
the directors was to borrow a sum of £26,750 on
the best securities of the bank, with the full
knowledge of the position of affairs.
There are at present 2,762 registered shares, of
which 870 are held by insolvent shareholders, 688
are under pledge to the bank by some of the
directors and the ca shier, 70 are held by the bank
itself, 555 are pledged by other shareholders.
Great depression naturally exists in consequence
of the stoppage of the bank, the shareholders being
mostly all proprietors of farms and landed proper-
ties in the village and district of the Paarl. Some
of the properties are already mortgaged to a certain
extent of their value, leaving little margin avail-
able to meet the heavy call which will be necessary
to meet the estimated deficiency of £109,068 16s.
4d., besides which the continuous pressure of sales
whioh will have to be resorted to during the liquida-
tion must seriously affect the value of properties,
and further tend to depreciate the value of the
other securities. The liquidators have therefore
very great difficulty in arriving at an estimate on
which they can confidently rely of the probable
result of the liquidation, whioh they fear will
prove disastrous to nearly every shareholder, as
the prospects of a more favourable realisation
than that indicated are very remote.
To add to the difficulties, several shareholders
are already insolvent ; whilst others, independent
of their share liability, have heavy obligations to
the bank, which it is anticipated they will be
unable to satisfy, thus leaving the burden of the
bank's liabilities to be borne by a reduced list of
contributories, some of whioh indubitably are not
in a position to meet them fully.
Under these circumstances it becomes difficult
to decide what call to recommend to be made upon
shareholders towards payment of the claims of
creditors. After much deliberation the liquidators
came to the conclusion to suggest that the call
should be fixed at not less than £250 per share,
payable at once.
It is with much concern that the liquidators
must, however, record their fear that very few of
the shareholders will be able to meet this call in
full ; and it is estimated that, after every share-
holder on the list of contributories is excussed, the
result will only yield about £58,000, leaving an
estimated deficiency of about £57,000.
Fer the purpose of settling the list of con-
tributories, as required by the 18th section of the
Act, an extract from the share registry of the
present shareholders now registered is attached to
this report (marked A). We are advised by
counsel to the liquidators that to meet the deficiency
referred te it will be necessary to recur to former
shareholders, and accordingly beg to annex hereto
a list of those persons who were the immediate
transferors of the existing contributories ; and we
also beg to ask leave of the Court, in the event of
further deficiency, te present an additional list of
former shareholders.
The liquidators have already had several applica-
tions made to them for compromising claims and
for extension of time, whioh in most oases it would
14
be for the ultimate advantage of shareholders
should be entertained. Similar questions are
likely to occur more frequently when the call is
made upon shareholders. Each case will be pro-
perly inquired into, and from time to time reported
to the Court for direction thereon, after these
proposed compromises have been advertised for
inspection of contributories for fourteen days.
Under the 27th section of the Act, it is requisite
for the Court to fix the time within which creditors
are required to prove their claims, and to meet the
convenience of all, the liquidators would suggest
that claims be received till the 28th February, 1891.
The liquidators have in certain cases, in the
interest of the liquidation, deemed it prudent to
accept part renewals of promissory notes, which
the makers and endorsers could not meet in full ;
and will continue this course when necessary.
They feel assured that by adopting this practice it
will tend to protect the interests of all concerned.
The liquidators have in some instances allowed
depositors to set off their credit balances against
their indebtedness to the bank, and they also
desire authority to set off their deposits against
their share liability. All moneys received have
hitherto been kept in the bank's safe; and the
liquidators now desire the Court's authority to
deposit same in the Standard Bank.
The liquidators have now to solicit the order of
this Honourable Court on the following points,
viz.:
First : To settle the list of contributories under
the 18th section of the Act, for which purpose the
annexures, referred to in this report, are submitted.
Second : To fix the time and mode the creditors
shall prove their claims under the 27th section.
Third : To assess the amount of the call under
the 22nd section.
Fourth : To direct as to the extent tVis Honour-
able Court will grant the liquidators the power to
compromise under the 44th section.
Fifth : To authorise the liquidators to pay
dividends without first filing accounts.
Sixth : To authorise the liquidators employing
Mr. C. C. de Villiers, of Cape Town, as their
attorney, they having already been compelled to
avail themselves of his services.
Seventh : Under the 18th section, to fix the
remuneration to be paid to the liquidators.
The Court granted the usual order as to the
report lying open for inspection for fourteen days,
and for publication of the notice.
TAYLOR AND 8YMONDS V. BCHUNKE.
Costs— Security for — 8th and 14th Rules of
Court.
Witham vs. Venables (1 Menzies, 291) as
explained by Lumsden vs. The Kaffrarian
Bank (3 Juta, 366) approved A non-
resident plaintiff who owns immovable
property in the Colony the value of which
after deduction of any mortgage debts due
thereon would suffice to pay the probable
costs of the action is relieved from giving
security for such costs.
Where, however, he is defendant in recon-
vention he is obliged to give security to
perform the judgment of the Court
{cautio judication solvi).
Mr. Sohreiner moved, on behalf of the defendant?
that the plaintiffs should be obliged to give
security for the costs of a pending action, in which
defendant Bet up a claim in reconvention. Mr.
Searle, on the authority of Lumsden v. The
Kaffrarian Bank, 3 Juta 366, Voet. (2, 8, 1) and (2,
8, 4,) and Van Leeuwen, Roman-Dutch Law. Book,
5, ch. 17, sec. 9, contended that the plaintiffs were
not obliged to give security.
Mr. Schreintr argued that the case of Lumsden
v. The Kaffrarian Bank did not apply, and quoted
Voet (2, 8, 10) in support of his contention.
The Court, having heard the arguments of
counsel, reserved judgment.
Pogtea— (February 2nd). — The Court delivered
the following judgment :
The Chief Justice said: Securities given by
litigants under the Dutch system of procedure
were of two kinds, viz., the cautio de sistendo and
the cautio judi cat urn solvi. By the former he under-
took to stand to and abide the judgment of the
Court, by the latter he undertook to perform it.
(See Voet, 2, 6, passim.) Under the 8th Rule of
Court an unsecured creditor for £15 or upwards
can obtain from the Registrar of the Supreme
Ceurt a writ for the attachment of a debtor who
is about to remove, or is making preparations to
remove, from the Colony, and such a writ stands
in lieu of the ordinary summons. If the de-
fendant gives no security he is kept under arrest
until judgment, but, when once judgment has been
pronounced, he is discharged from arrest, and, if
he is to be kept any longer in prison, it can
only be under a separate process for civil im-
prisonment in execution of the judgment. But a
defendant may be released before judgment
upon giving security under the 14th Rule
of Court that he will " stand to, abide, and
perform the judgment of the Court, or render him-
self to the prison of the said Court in execution
thereof." It has been more than once decided that
these rules were not intended to deprive the Court
itself of the power to order the arrest of a de-
fendant, or require security from him in cases,
although not falling within the rules, where the
law authorises such arrest or security. It is
15
obvious that these rules apply only to the case
of resident defendants. In order to confirm
jurisdiction in an action against a person not
domiciled in this colony an application must be
made to the Court for the attachment of his person
or property. Such an application, as pointed out
in " Einwald v. German West African Company "
(5 Juta, 86), would not be granted, unless some
ground of jurisdiction existed, suoh as in the case
©f a tort, that it was committed in this colony,
or in the case of a contract, that it was to be per-
formed in this colony, or that the subject-matter
was situated within this colony. " The object of
the attachment," says Perkins (De Jure Sutendi,
46, 11), u is not only to secure the debt, but also
to facilitate proceedings against the debtor."
The order for attachment, therefore, could
only be discharged upon sufficient security
being given. The ownership of immovable pro-
perty did not, under the Dutch practice, relieve the
defendant from giving such security, unless the
property itself was under attachment, in which
case the attachment protected the plaintiff. (See
Groenen ad Dig., 2, 8, 15.) The secarity thus re-
quired was judicatum solvi, and not de tistendo,
which was practically obsolete. (Groenen ad
Jntt n 4, 11, 2, and 4.) In the present case there is
no subsisting attachment upon the respondents'
land, the order previously given having been dis-
charged on the ground that a material fact was
not disclosed to the Court by the plaintiff when he
obtained the order. That fact was that the re-
spondents had themselves commenced an action in
this Court against the applicant. This was a
most material circumstance, for, according to the
rule reconrentio forum competent efficit y the respon-
dents could net, after instituting their action,
question the jurisdiction of this Court to
entertain the applicants' claim in reconventien,
or, by relinquishing their action, prevent the
Court from deciding the claim in reconvention.
(See Voet, 5, 1 , 78.) The questions which must
now be determined are: (1st) whether, as
plaintiffs, the respondents must be ordered to
give security for costs; and (2nd) whether, as
defendants, they should be ordered to give
security to perform the judgment of the Court
upon the applicant's claim in reconvention ;
and (3rd) if security is to be given, for what
amount it should be. The first question has been
practically decided by the Court in the case of
"Witham v. Venables " (1 Menz., 291), as
explained by the subsequent case of " Lumsden v.
The Kaffrarian Bank (3 Juta, 866). It is too late
to question the correctness of the former case as
so explained, seeing that it has been acted upon in
several subsequent cases. We must, therefore,
take it to be the proper practice that a nonresi-
dent plaintiff, who owns immovable property in
this colony, the value of whioh, after deduction of
any mortgage debts due thereon, would suffice to
pay the probable costs of the aotion, is relieved
from giving security for such costs. The respon-
dents own immovable property of great value
which is mortgaged for a comparatively small
sum, and ought not therefore to be called upon
to give such security. The second question
has never yet been determined in this Court.
If the respondents had not instituted any
action against the applicant there would have
been no doubt, in view of the authorities I have
cited, as to their liability to give security as defen-
dants. The fact that they have forestalled the
applicant in this suit ought not, in my opinion, to
relieve them from that liability. According to
Voet (2, 8, 1) a non-resident plaintiff can be called
upon to give security net only for the defendant's
costs, but also for his claim in reconvention.
According to Van Leeuwen (R.D. Law, 5, 17, 9),
the defendant may request security for costs, and
for that which he may claim in reconvention, and
Chief Justice Kotze', in a note to his translation of
the passage, refers to a Transvaal case which was
decided in accordance with the text. The amount
for which security was acquired undei the Dutch
practice was, as a general principle, that which the
plaintiff claimed. Under that practice, however,
differing in that respect from ours, a plaintiff in-
curred certain penalties if he claimed an amount
far in excess of that which was ultimately awarded
to him. It is a question whether it would not be
wise to recur to the former practice, seeing what
excessive claims are sometimes presented to the
Ct)urt for adjudication ; but until our practice is
altered the Court must retain some conttol over
the amount of security to be required from non-
resident defendants In the present case we are of
opinion that the security must be for £2 000.
Failing suoh security being given to the satisfac-
tion of the Master of the Supreme Court within
twenty-four hours, the Registrar will be authorised
to issue an interdict restraining the respondents
from alienating the property and bond previously
attached pending the decision of the action. The
costs of this application must be costs in the cause.
Mr. Justice Buchanan said : The plaintiffs, who
are net domiciled in this colony, sue the defendant,
a resident. Pefore entering appearance defendant
calls upon plaintiffs to give security for the costs
of the aotion, and also for the sum of £47,000,
which, he states, he intends to claim in reconven-
tion as damages for breach of contract. The
plaintiffs deny their liability to give any security
at all, as they are registered owners of landed pro-
perty purchased for £26,000, of which plaintiff
Symord*'s half-share is unmortgaged, but Taylor's
half- share therein is mortgaged to liis co owner for
£8,000. A previous application by defendar t to
attach plaintiffs' property in order to found
jurisdiction in an action which he proposed
16
bringing, and in which defendant intended to
make the olaim he now proposes to set up
in reconvention, was refused, as the defendant
had concealed certain material facts from
the Court as to the action taken by plaintiffs.
This matter of security to be given by litigants
is one purely of judioial practice. This practice
has been a progressive one, the true principle un-
derlying it appearing to be that justice shall not be
denied by unreasonable obstacles being placed in
the way of persons seeking redress ; while at the
same time citizens are to be secured from being
unduly harassed by unfounded claims. Thus
formerly, under the civil law, the provisions of
the law that when a person duly cited did not
appear he was liable to a fine led to a defendant
giving security, in the first place for his appear-
ance in court, and afterwards for the subject-
matter of the suit, and in turn the plaintiff was
bound to give a guarantee for the security of the
defendant. (See Voet bk. 2, lit* 5 et stq., and
authorities cited by him). These requirements
were from time to time modified, and Voet states
(2, 8, 1) that in his time security on the part of
the plaintiff had ceased to be required unless he
was a peregrinus having a foreign domicile, or was
otherwise suipectus, in which cases he would be
liable to be required to give security for the full
amount of costs, and to enter on the case in
reconvention (reconvenlione siucipienda). The
leading case in our Gouit as to when security for
costs is exigible from a plaintiff is reported as
" Witham v. Venables," 1 Menzies, 291, decided
shortly after the establishment of the Supreme
Court in 1828. The report states that the Court,
after full argument and a deliberate consideration
of all the authorities, held that no person who is
either civix municcp* or incola of this colony can,
as plaintiff, be compelled te give security for costs,
whether he be rich or poor, solvent or insolvent ;
and on the other hand that, every person who is
neither civis municeps nor incola may, as plaintiff,
be called on to give security for costs, unless he
prove that he is possessed of immovable property
situated within this colony. The report states
that the Court found that the plaintiff in that
case was an incola, and it consequently follows
that the second part of the opinion expressed in
the report was merely an obiter dictum. It is,
however, clear that the learned judge, from whose
notes these reports were collated, intended to
record the opinion of the Court on both points. I
have endeavoured, though without much success,
to discover the particulars of the case. The
plaintiff appears to have been an attorney of the
Court, but from other proceedings it would seem
likely that he was no more than nominal plaintiff,
the real plaintiff being in Bngland at the time.
This seems to explain why the Court expressly
laid down under these circumstances that the
plaintiff was to be considered an incola, and also
to suggest why an opinion was given as to the
liability of a plaintiff who had no local domicile.
The practice of the Court for upwards of sixty
years, founded on this case, has with us established
the right of a defendant to olaim security for costs
from a foreign plaintiff. It may be noticed that
the dictum in "Witham v. Venables " goes to
relieve such a plaintiff from giving security for
oosts if he be possessed of immovable property
within the Colony. This dictum was qualified, or,
at least, explained, in "Lumsden ▼. Eaffrarian
Bank " (8 Juta, 866), as meaning that plaintiff's
prep*rty must be of sufficient value. The Chief
Justice, in giving judgment, then said that there
were authorities in the civil law to the effect that
a person possessed of immovable property was
not bound te give security, but that it was quite
clear that the rule of the civil law had been
departed from in the Dutch law. A consideration
of Voet and the other commentators, however,
would show that a distinction is drawn between
what is demandable from a foreign plaintiff and
the security required from a foreign defendant,
and this seems to explain the apparent difference.
The Court did not go the length of overruling the
dictum in " Witham v. Venables." As the object
of the provision is to secure the defendant, the
Court in Lumsden's case held that the defendant
was not secured if the plaintiff's property was
mortgaged for more than its full value. And on
the same principle the Court only last August
term, in the case of " Hulbert <fc Co. v. Caporn &
Marriott," refused to order the plaintiff to find
security. There the plaintiff was not an incola,
and it was not suggested that he had any landed
property in the Colony, but as defendants
admitted their liability for part of the money sued
for, which amount was sufficient to cover their
eosts, it was held that they were not entitled to
any further security. What, then, the Court looks
to is, that the defendant shall net be left unpro-
tected when sued by a foreign plaintiff. And
this position is not assailed by the fact that the
authorities seem to recognise the right of a foreign
plaintiff who is a pauper to sue without giving any
security, or obtaining the leave of the Court, for
such a plaintiff must first establish a prima facie,
case. The right seemed to have been recognised
by this Court in 1871, in the case of " Greig 6 Co.
v. Robertson's Curators," where defendants'
application to compel a plaintiff who was not an
incola to find security for costs was stayed on
plaintiff undertaking to prosecute an application
for leave te sue as a pauper. That case, however,
does not seem ever to have got the length of a
trial. Of course, if a plaintiff is absolved from
giving security because he is possessed of im-
movable property, on any suggestion of fraud, or
that he was disposing of such property, and so
17
defeating the security thereby guaranteed, the
Court would not hesitate to interfere. But there
is no such suggestion in this case, and I am of
•pinion therefore that bo much of the applica-
tion as refers to security for costs ought not
to be granted. Bnt there remains the farther
question as to security f er any claim which defen-
dant may set up by way of reconvention. It may
be noticed that no reference is made to this point
in "Witham v. Venables," probably because in
that case no such claim was set up. The
passage cited from Veet (2, 8, 1) is open to a
construction different to that contended for by
defendant ; but I find that all the commentators
to whom I have referred recognise defendant's
right to such security. Van Leeuwen, in dealing
with dilatory exceptions, states that if the plaintiff
be a stranger the defendant may request, in
addition to costs, security "for that which the
defendant may claim from the plaintiff by way of
counter-claim." (Commentaries, bk. 5, ch. 17,
sec. 9, Ketze's Translation, vol. 2, p. 457.) Van der
Linden, in his " Judiciele Practycq " (2, 4, 4),
lays down that defendant may claim security for
the costs of the action, and for the performance of
the claim iu reconvention (om te doene reconventie).
Merula is to the same effect, "Manier van
Procederen" (4, 41, 1, 1), and the learned trans-
lator of "Van Leeuwen's Commentaries" in a
note to the passage already referred to, cites
a decision of the Supreme Court of
the Transvaal to the same effect. I
have not been able to discover any instance
where any such order has been given by this
Court. On the contrary, I find that in " Holy-
oake v. Laing " and " Horton v. Laing," in 1838,
applications for such security were made and dis-
missed ; but it is probable this was on the merits,
as no security at all was there directed, even for
ceete. But while a defendant is sufficiently pro-
tected from being unduly harassed by unfounded
claims by compelling a foreign plaintiff to give
full security for costs, or to be possessed of pro-
perty available in case of his being unsuccessful,
to compel such a plaintiff who follows his debtor
to such debtor's domicile, and sues him in his own
forum, to give security for any amount of damages
which such debtor states he intends to claim by
way of reconvention, would open the way to
the denial of justice. It is true all the old
authorities on practice already oited state
that a foreign plaintiff unable to find
security may be admitted te sue upon giving
the eautio juratoria, viz., an oath that he would
satisfy the judgment of the Court, but that would
be a security upon which in these days very little
value would probably be placed. The proper
course, I think, would be to put the defendant
in exactly the same position as he would have been
in had he instituted an action fer the damages
claimed, instead of setting them up by way of re-
convention. Before anyone could sue a foreigner,
jurisdiction would have to be established, which
may be done by arrest either of person or of
property, and as such arrest can only be by permis-
sion of the Court, the Court can determine the
nature and extent of the arrest. If, then, we
treat the defendant's application for security of
his claim in re-convention as if he were a domiciled
plaintiff suing foreign defendants, in granting that
application the Court is entitled te oonsider all
the circumstances connected with the claim,
and without in any way prejudging the case, to
determine on the nature and extent of the security
which should be given, so as on the one hand to
protect the applicant, on the other to see that
justice is not denied. It is, I think, when con-
sidering the position of a foreign defendant that
the Dutch law authorities referred to in LumsdeiTs
case lay down that even an owner of land is not
exempted from liability to give security, though,
ef course, such security may be given either by
finding sureties, or it may be by attaching pro-
perty within the jurisdiction of the Court. Under
the circumstances of this case I think it will be
sufficient to order the defendants in re-convention
to find security for the sum of £2,000, or to have
his property attached as stated by the Chief
Justice.
ATKINSON V. THE BE GIST EAR OF DEEDS.
Deed of Transfer — Registration of ordered
although a rule established in the Deeds
Office had not been complied with.
Mr. Schreiner moved, on behalf of the applicant,
that the respondent should be ordered to pass and
register a certain deed of transfer passed by James
Smith Cawood to Joshua Samuel Hitchcock
Atkinson, which deed was lodged in the Deeds
Office on the 4th December last fer registration,
and was thereafter rejected on the 6th December.
The Attorney-General, who appeared for the
respondent, read an affidavit, sworn to by the
Registrar of Deeds, from which it appeared that a
rule had been established in Deeds Office by
which a deed of transfer would not be passed and
registered unless the names of transferor's and
transferee's father were inserted therein. The
reason stated for adopting this rule was its great
practical utility, and that by means of it many
mistakes had been avoided, and errors which had
existed for years had been detected. The
Attorney-General contended that it was within the
discretion of the Registrar to make such a rule, and
that it was only one of many other rules of equal
utility which were in force in the Deeds Office,
18
The Attorney-General alto referred to the Placaats
of the 19th June, 1714, and 22nd April, 1798.
Mr. Sohreiner argued that the Registrar had no
power under the statute to make such an arbitrary
rule, and oontended that if such a principle were
admitted there was nothing to prevent the
Registrar from establishing a rule that deeds of
transfer should have attached to them the
"photos" of the transferor's and transferee's
father, mother and other relations.
The Court deferred making an order.
Pottea (January 27th) the Court made the
following order :
The Chief Justice recited the facts, and ob-
served that by Ordinance Ifo. 14 of 1844 the
Registrar of Deeds was required to register all fit
and proper transfer deeds and deeds of hypotheca-
tion. The Court was of opinion that the deed of
transfer under consideration was such a fit and
proper deed within the meaning of the statute, and
consequently that fthe Registrar onght to be
ordered to register the same. In oases in which
the Registrar could show that confusion might
ensue from not having the names of transferor's
and transferee's father inserted in the deed of
transfer the rule hitherto in force in the Deeds
Office might be applied. In the present case,
however, no suoh confusion oould arise. The
order would be granted as prayed with costs.
IN THE INSOLVENT ESTATE OF CHEISTOFFEL
VILJOEN.
Mr. Sohreiner prayed for an order confirming
the election of Mr. Harry Gibson as sole trustee
of the said estate, and to grant him full powers as
provisional trustee to liquidate the estate.
Mr. Searle, on behalf of the Uitenhage Board of
Executors, opposed the motion, and asked that Mr.
Henry Nutall Chase should be appointed co-
trustee with Mr. Gibson.
The Court ordered a fresh election ; Gibsen to
have his oosts if re-elected.
SUPRE ME COURT.
TUESDAY, JANUARY 27.
[Before the Chief Justice (Sir J. H. DE VlLLIEBS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
admissions.
On the motion of Mr. Molteno, Mr. Alfred
Dyasaon was admitted as an attorney and notary.
The oaths to be taken in Port Elizabeth.
On the motion of Mr. Watermeyer, Mr. S. J.
Mostern was admitted as a conveyancer.
THE GAPE OF GOOD HOPE BANK, IN LIQUIDA-
TION Y. ESTATE OF VAN LIEB.
Company — Bank in liquidation — Contributo-
ries — Application to vary list.
Mr. Searle moved in this matter for leave to
vary the list of contributories to the above bank
by placing thereon the names of the executors of
the above-mentioned estate in lieu of the said Van
Lier (deceased). It appeared from an affidavit
read by Mr. Searle that the late Mr. Van Lier had
appointed the South African Association executors
of his will, and had directed that they should hold
twelve shares in the Cape of Good Hope Bank
for the benefit of the Cape Town Ladies 1 Benevo-
lent Society, and that the dividends on the said
shares were to be paid to that society. The
liquidators were anxious to realise their legal
position as against the heirs, executors, or the
above-mentioned society, and prayed that the
executors might be placed on the list of con-
tributories.
The order was granted.
PETITION OF CABEL J. GBOOVE, J UN.
Mr. Molteno moved on behalf of the petitioner
that authority might be given to the Master to
consent to the cancellation of a bond mortgaging a
certain undivided share of the farm Drooge
Onvast, in the district of Beaufort West, and to
accept in place thereof a mortgage of a defined
portion ef such farm.
Authority granted to the Master as prayed for,
on his satisfying himself that the security will
remain sufficient.
THE CAPE OF GOOD HOPE BANK, IN
LIQUIDATION.
Company — Bank in Liquidation — Com-
promises.
Mr. Searle, on behalf of the liquidators of the
above-mentioned bank, asked for the sanction of
the Court to a compromise proposed to be effected
with one Frederick A. Searle, residing in Italy, in
respect of thirty-five shares of which he is the
registered holder.
It appeared from affidavit that Mr. F. A. Searle
was at present living in Italy, that his capital had
been invested in land in that country, settled upon
his children, and that he had made an offer of
£700 in full settlement of all claims against him
by the Cape of Good Hope Bank. The liquidators
now asked for the sanction of the Court to accept
this offer, otherwise considerable expense would
19
be incurred in attempting to recover the full
claim of £1,050.
Under the circumstances, the order wu granted
ii prayed.
JOHANNES PAULUS M08TBBT V. THE
REGISTRAR OF DEEDS.
Mortgage Bond — Cancellation — Cession —
Non-compliance with Act 3 of 1864,
Section 13. Rights of Mortgagor not
affected.
Mr. Schreiner, on behalf of the applicant, moved
for an order requiring the cancellation in the Debt
Register of a certain mortgage bond passed by
applicant in favour of one Lindenberg for £1,500,
the same having been paid.
It appeared from affidavits read that Linden-
berg, the mortgagee, had ceded the bond to the
Bank of Africa, and that subsequently the bank
had cancelled the cession.
Mr. Giddy, who appeared for the Registrar of
Deeds, contended that the respondent was justified
in refusing to cancel the deed, on the grounds that
the cession to the bank and subsequent cancella-
tion had not been stamped according to law, and
in rapport of his contention referred to Act No. 8
of 1864, section 13.
Mr. Schreiner, in reply, pointed out that the
applicant (the mortgager) had not been a party to
either the cession or subsequent cancellation, and
that he eould not be made to suffer for the lache*
of the mortgagee or of the bank.
The Chief Justice, in granting the order as
prayed for, remarked that he was clearly of opinion
that section 13 of Act No. 8 of 1864 did not apply.
The applicant had paid the amount of his bond,
and was consequently entitled to have the same
cancelled in the Debt Register, and he could not
be affected by any claim which the Government
Bight have against the mortgagee or others for not
complying with the Stamp Acts. The order would
be granted as prayed with costs.
SUPREME COURT.
MONDAY, FEBRUARY 2.
[Before the Chief Justice (Sir J. H. DE VlLLIEBS),
Mr. Justice SMITH and Mr. Justice
BUCHANAN.]
PROVISIONAL ROLL.
BOARD OP EXECUTORS V. BOUX.
In this matter provisional sentence was granted
■d the property declared executable.
SAVINGS BANK V. DE WAAL AND ANOTHER,
Provisional sentence granted for £1,200 and
interest from 80th June, 1889.
SOUTH AFRICAN ASSOCIATION V. ELLIOT.
Order discharged.
STANDARD BANK V. ROBERTSON AND BAIN.
This matter was ordered to stand over till
Thursday next.
A. OHLSSON & CO. V. DAT.
Final order for sequestration granted.
SCOTT BROS. V. HIRST.
Provisional judgment for £28 8s.— Granted.
KAUFMANN AND PATERSON V. J. J. ATKINSON.
Provisional judgment for £8 19s. 9d.— Granted. -
CLEGHORN <fc HARRIS V. W. J. HIRST.
Provisional judgment for £9 0b. 2d. — Granted.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Meier
Gordan, Henerik Jacobus van Beden, James
Jay, Eva Allright, Johannes Lambreohts van
Niekerk, Tobias Alias Mall, Willem Sobalk van
der Merwe, Gabriel Francois Nel, Carol us
Amsterdam, Edward Thomas Fleischer, Peter
Jacobus Johannes Krummeok.
GANNON V. GANNON.
On the motion of Mr. Schreiner, the rule nisi in
this matter was made absolute, dissolving the
marriage subsisting between the parties, and
giving the plaintiff the oustody of the children and
the costs of suit.
D'ABO V. BENSON AND ANOTHER.
In this matter Mr. Melteno moved for process is
add of a judgment of the High Court to enable
execution to be levied on property of the defea*
dants beyond the jurisdiction of the said Court.
Application granted as prayed for.
PETITION OF BAREND J. J. BURGER.
Mortgage Bond — Application for cancellation
of refused where Mortgagor was executor
of Mortgagee's estate.
Mr. Sohreiner moved for an order authorising
the cancellation in the Registry of Deeds of a
certain mortgage bond passed by the petitioner in
20
favour of hi* deceased father, on the grounds that
the mortgagee intended to release him from pay-
ment thereof, hut failed to carry his intention
into effect, in consequence of his illness and sub-
sequent death.
It appeared from an affidavit sworn to by
petitioner that the bond, which had originally
been for £3,000, had at the time of the mortgagee's
death been reduced by payments to £900. The
bond itself could not be found after the mort-
gagee's death, he having presumably destroyed it,
with the intention of freeing the mortgagor from
further liability.
The Chief Justice, in delivering judgment, re-
marked that to grant the order as prayed for
would be establishing a very dangerous precedent,
as it might be an easy matter for an executor
under similar circumstances to destroy proof of
claims against himself. The order would be
refused ; but the petitioner might bring an action
if he were desirous of having the bond cancelled.
As there were minors to whom no guardian had
been appointed under the will of the mortgagee ;
Mr. Juta would be appointed curator ad litem in
the event of the petitioner bringing an action.
PETITION OP ANNA J. FOURIB.
Mr. Molteno applied in this matter for autherity
to draw a sum of money awarded to petitioner's
husband out of the estate of his deceased father.
It appeared from affidavit that petitioner's hus-
band had deserted her four years ago, and that
during this period he had not contributed to her
support, or that of the children of the marriage ;
that under the will of his father he was entitled to
£49' 6s. 8d., and the petitioner asked that this
amount might be handed over to her.
A rule nisi was granted, calling upon respondent
to show cause why half the amount to which he
was entitled in his father's will should not be paid
over to petitioner.
PETERS V. PETERS.
Mr. Jones moved to make absolute the rule nut
admitting the applicant to sue in forma pauperis
in an action against her husband for restitution of
conjugal rights, failing which for divorce.
Rule made absolute.
PETITION OF HENBT ADSHADE.
Mr. Juta applied for the appointment of peti-
tioner as curator of the person and property of his
father, Charles Adshade, alleged to be a person
of unsound mind and incapable of managing his
affairs.
The Court appointed the Resident Magistrate of
Swellendam curator ad litem, and ordered that his
evidence and that of Dx. Shand should be taken
pn affidavit.
CAMPAAN V. OAMPAAN.
In this matter Mr. Jones moved to make abso-
lute the rule nisi admitting the applicant to sue
in forma pauperis in an action for divorce against
her husband by reason of his adultery and deser-
tion.
Rule made absolute, evidence to be taken on
commission, the Resident Magistrate of Cala to
act as commissioner.
SCALLAN'S EXECUTORS V. VOOBTMAN.
Mr. Molteno applied for process in aid of a
judgment of the Eastern Districts Court, to
enable execution to be levied against property of
the defendant beyond the jurisdiction of that
Court.
Application granted.
IN RE THE BARQUE "HERA."
Ship — Arrest ad fundandam jurisdictionem.
Mr. Schreiner, on behalf of Messrs. Searight &
Co., applied for a writ of arrest against the above-
named ship.
It appeared from an affidavit of Messrs. Searight
<fe Co. that the captain of the " Hera " was indebted
to their firm in the sum of £65. A cheque for this
amount had been tendered by the agents of the
ship (Messrs. Poppe, Russouw & Co), but on
presentation at the Standard Bank it had been
referred to drawer.
The Court granted the arrest ad fundandam
jurisdictionem j the writ to be discharged on
security for £100 being given to the satisfaction of
the Master.
STURROCK V. BIRT.
Libel — Application for particulars of allega-
tions contained in libel refused, the Court
being of opinion that the charges made
were sufficiently " specific."
In this matter Mr. Juta moved for an order
directing the defendant to furnish the plaintiff
with particulars and details of the allegations
contained in the libels set forth in the declaration
filed in the suit between the parties.
Mr. Juta, in supporting the application, said
that the plaintiff objected to the general oharacter
of the accusations made against her, notably those
communicated by a certain "godly woman" and
by a " good young man." She was anxious to know
who those persons were, as well as under what cir-
cumstances, and at what times, she had committed
the offences with which she was charged.
Counsel contended that she was entitled to this
information, and in support of his contention re-
ferred to the oases of M Williams v. Shaw/' 4
*i
Buchanan, B.D.G. Reports, p. 106, and " Gourley v.
Plimsoll," L.R. 8. Ci>. 862.
Mr. Schreiner, en behalf of the defendant,
opposed the motion and contended that the infor-
mation asked for was purely of a " fishing "
character.
The Court refused the application, being of
opinion that the charges brought against the plain-
tiff were sufficiently " specifio," and that the case
of " Williams v. Shaw " did not apply. An order
was also made for the issuing of a joint commission
to take evidence in the case.
US THE B8TATE OF THE LATE JOHN QUIN.
Attachment ad fundandam jurisdictionem of
heirs interest under will.
Mr. Schreiner applied for the attachment ad
fundandam jurisdictionem of this Court of the
interest in the said estate of William Joseph Quia,
as heir of Emily Quin, in an action for an account
of the administration thereof.
Order granted attaching the property, the order
U operate as an interdict to prevent the respon-
dent from passing transfer of the property, the
order to be personally served on the respondent
and en the Registrar of Deeds.
IK THE INSOLVENT ESTATE OF BICHABD DAT.
Tne Court, on the application to Mr. Juta, ap-
pointed Mr. H. F. Bast provisional trustee.
IN THE WHITE HOUSE MINING AND DEVELOP-
ING SYNDICATE.
On the motion of Mr. Searle, the Court granted
the powers conferred by the 16th section of the
Winding-up Act to the liquidators in the abore-
aamed syndicate.
THE CAPE OF GOOD HOPE BANK, IN LIQUI-
DATION.
Liquidators' Second Report.
Mr. Juta presented the second report (annexed)
of the liquidators in the above bank, and asked
that the authority given to certain gentlemen some
time ago to inspect the books and other documents
of the bank should not be extended to the securi-
ties held by the bank.
The Court ordered the liquidators not to allow
inspection of the securities pending the receipt of
notice by the gentlemen referred to in the pre-
vious order.
THE BEPOBT.
1. The following balanoe-eheet shows the condi-
tion of the bank's affairs upon the 19th Sep tea ber,
the date of the steppage of the bank :
LIABILITIES. (DB.)
To capital paid up
Reserve fund
Contingent account
Bad and doubtful debt fund
Profit and doubtful loss account...
Surplus cash ...
Interest in suspense
Unclaimed balance
Notes in circulation
Current accounts, credit balances
Fixed deposits
Interest due on fixed deposits
Rebate on bills not yet due
Dividends unpaid
Balance due to ether banks
London and Westminster Bank
(see oontra)
Adjusting aooount
Bills payable... ... ...
Bills for collection
£175,000
60,000
17,346 15
183,828 19
15,961 6
13 16
16,220
1,060
113,262
569,568
1,343,723 16 11
24,266 19 10
72 1
687
42,203 7
8
5
3
1
7
6
4
5
9
2
214,285 14
783 7
58,164 18
193,411 8
6
8
2
£2,978,729 7 4
ASSETS.
(CB.)
£207,778 16 11
94,181 8 1
5,264 8
46,292 8 7
30,569 6 8
614,022 7 9
108,*83 11 7
28,471 11 2
230,714 16 8
By cash advanced to head office
and branches ... ... •••
Remittances in transitu
Cheques and notes of other banks
Bank premises and furniture
Properties account
Bills discounted current
Part due bills
Bills of exohange
Bills of exohange in hands of the
London and Westminster Bank
as cover for £214,285 14s. 5d. (as
per contra)...
Current accounts overdrawn
(partly secured)
Loans speoially secured
Balances due by other banks
Specie insurance account
Native gold advance account
Stamps in hand ... ...
Stationery ... ... ••• •••
Bills deposited (as per contra) ...
£2,978,729 7 4
2. On the 14th October, 1890, the official liqui-
dators presented to your honourable Court a pre-
liminary or first report, in which they asked for a
call of £80 per share, which was sanctioned by an
order of Court on the 28th October, 1890.
8. On the latter date, a payment of a dividend
of 5s. in the £ was also sanctioned, and the official
liquidators were authorised to borrow from the
Standard Bank, upon terms stated, whatever money
1,010,897
4
384,760 9
8
23,892 2
4
169 10
7
4,302
8,165 18
8
2,802 15
1
198,411 8
22
might be needed to enable them with the money
then in hand to make the above payment.
4. This dividend was notified as payable on the
18th November upon all claims proved up to the
3rd October. The great mass of claims coming in,
and the inconvenience which would have resulted
to many oreditors had the liquidators delayed pay-
ment of any portion until all could be paid simul-
taneously, rendered it advisable to pay out the
dividend in the order in which claims had been
proved. Similarly the payment of the dividend
upon all claims proved up to 80th November last
was begun upon the 15th January, and is still
being continued.
6. The date originally fixed by your honourable
Court for the filing of claims was the 30th Novem-
ber, but as considerable numbers of claims were
still unproved on that date, the official liquidators
moved your honourable Court to extend the time
to the 28th February, whioh was sanctioned.
6. With respect to the power given by your
honourable Court fer the borrowing of money
from the Standard Bank, it will be seen from the
statement below that there was no necessity for
this course, moneys having been oolleeted by the
liquidators to a sufficient amount to enable them
to pay the dividend without any further aid.
7. Upon the application of a small number of
creditors in the South African Republic, represent-
ing only a small amount of debt, the High Court
at Pretoria appointed three provisional liquidators
to take oharge of the books and assets in that
Republic. As it was considered unusual and
objectionable that such an appointment should be
confirmed, and a separate liquidation be thus
established there, the liquidators felt it their
duty to oppose this coarse. After considerable
litigation of an expensive and vexatious character,
the liquidators were placed in possession of all the
assets in the South African Republic by a judg-
ment of the High Court on the 15th November,
1890. One of the liquidators (Mr. H. J. Feltham)
proceeded to the Transvaal towards the end of
September, and is still there engaged in supervis-
ing the liquidation of the various branches in that
country. The Court required the liquidators to
choose a domicilium there, and further reserved
the question of the remuneration of the provisional
liquidators, which has since been fixed by the
High Court at the sum of £1,135.
8. The total number of claims received up to the
31st January was 6,428. The total amount of
claims proved and admitted up to the 81st of
January last was £1,929,920, and for these cheques
have been issued for the dividend of 5s. in the £,
amounting to £482,480. Other claims are still
coming in, and will have to be received up to the
28th February. Owing to the fact that " set-offs "
are still being claimed and variations made during
adjustment, the liquidators are still unable to
make an exaot statement of the total liabilities
upon whioh dividends will be payable. The
liabilities at the stoppage of the bank were
£2,152,277 ; from this there has been made up to
Deoember 81 a reduction of £110,188 for "set-
offs " or from other causes, leaving a net amount
of £2,042,189 as the estimated net liability upon
whioh dividends must be paid ; subject, however,
to further variation.
9. Up to the 29th ultimo in the Colony, and up
to Deoember 81 in London, the offioial liquidators
had received, and had to their credit at the Stan-
dard Bank, the sum of £1,033,422. The dividend
of 5s. in the £ would absorb of this an estimated
sum of £510,585. The amount of dividend war-
rants actually reported as paid up to the 29th
ultimo was £405,348.
10. There remained therefore at the date of the
last return the sum of £622,887 available for a
further dividend, being more than sufficient to pay
5s. in the £. The liquidators, therefore, now aak
the sanction of the Court to their making a further
payment of 5s. in the £, and also to their paying
subsequent dividends as the funds collected by
them from time to time will admit.
11. In their first report the liquidators estimated
the amount recoverable from the call of £80 per
share at £825,000. The amount actually received
up to the 29th January was £288,871. The
liquidators are of opinion that the amount origin-
ally estimated will prove to be nearly correct.
12. The liquidators are now engaged in taking
advice as to the proper steps to be adopted to re-
cover from former shareholders in oases where
transferees now on the list have failed to pay their
calls is full.
18. The bulk of the securities oonaist of shares
of whioh a large proportion are shares in gold-
mining companies. The liquidators have not con-
sidered it prudent in the face of a market showing
signs of recovery from an extreme and probably
undue depression to realise any large quantity of
these.
14. With referenoe to the application which was
made on the 9th December, 1890, to the Court,
by certain oreditors and shareholders, to inspect
the books and ©counts of the bank, and whioh
application was granted, the offioial liquidators
desire very resptectfully again to impress upon
the Court their conviction of the serious damage
whioh will ensue to the bank's interests if the
nature or number of the securities held by the
bank should become known, and they would again
urge in the interests of the liquidation that these
and the records of them, be excluded from examin-
ation until they have been realised.
16. It has been found necessary to consider a
number of propositions for compromise. The first
lot of 20 was confirmed by the Court on the 20th
of January. The liquidators have in hand up to
38
the present time mora than .70 farther proposals,
betides six sworn declarations of complete destitu-
tion and inability to pay anything, all of which
require, and are receiving, careful inquiry and con-
sideration.
16. The official liquidators find that the weak-
ness and ultimate cause of ruin to the bank arose
from the system of heavy overdrafts and loans en
security of scrip liable to extreme fluctuations in
value, joined with the taking of fixed deposits
to a large amount, and the absence of an adequate
reserve of gold, or of readily negotiable securities.
These advances were made to a greater or less
extent at all the branches, the largest amounts
being at Kimberley, Johannesburg, and Port
Elizabeth. Names in themselves entirely un-
worthy of credit are to be found in the books as
debtors to large amounts against scrip which is
now in many eases reduced to an enormous extent,
and in some oases has no value whatever. A
further cause appears to have been a want of
discipline in the management of the bank and a
failure on the part ef the directorate and manage-
ment in the maintenance of an effective control
over the managers of branches.
17. Many rumours having been afloat respecting
the position ef the directors in regard to the bank
at the time of its stoppage (independently of their
calls on shares), the liquidators think it right to
state that two of their number are debtors to a
large amount, and the bank is likely to be a heavy
loser on the accounts. Of one ef these it may be
said that he was a debtor in a considerable sum
before he became a director, and of the other, that
bis name and well-known connections would no
doubt have obtained, and did in fact obtain for
him, elsewhere, equal facilities for borrowing, even
bad he not been a director. The bank will net
lose money on advances or overdrafts by any other
director. On this subject the liquidators would
farther state that the report in circulation at the
time of the bank's steppage, to the effect that the
chairman had withdrawn, just before the dosing,
eonsiderable sums of money, had no foundation in
fact.
18. The liquidators have endeavoured to form
an estimate of the present value of the bank's re-
maining assets, with a view to enabling creditors
te form some opinion as to further dividends.
They regret that they have been unable to arrive
at any satisfactory result. The debts still due to
the bank are many of them of very doubtful
character, and some of them will require consider-
able time and indulgence for their ultimate
liquidation; further, the share assets are to a
treat extent of doubtful or uncertain value. If
the circumstances of the Colony generally improve,
there is no doubt that the assets of the bank will
improve with them. Upon the whole, the
liquidators would not feel justified in going beyond
a statement of their belief that a further dividend
of 5s. in the £, in instalments extending over a
considerable period, will probably be paid.
19. The liquidators beg to bring to the notice of
the Court that they have been assiduously and
anxiously engaged in the business of the bank's
liquidation (to the almost entire exclusion of other
pursuits) since their appointment, and they re-
spectfully request the Court to fix their remunera-
tion in respect of their past and future servioes.
20. The liquidators now ask the Court to sanc-
tion:
1. The payment of a second dividend of 5b. in
the £, to be payable on and after March 2 next.
2. Permission to pay subsequent dividends as
funds in hand may from time to time allow.
3. The exclusion of the share or other securities
held by the bank, or the record of them, from the
inspection sanctioned by the Court of the books
and accounts of the bank.
4. And to fix the remuneration of the liqui-
dators for their past and future services.
PHILLIPS V. PHILLIPS.
This was an action for divorce instituted by the
plaintiff against his wife, on the grounds of
her desertion.
Mr. Giddy appeared for the plaintiff, who, on
being examined, stated that he was married to the
defendant in a registry office in England on
November 7, 1878 ; that he and his wife lived
together fer about three weeks after their
marriage, when she left him and returned to her
father's house, and refused to live with him any
longer, from conscientious motives.
The marriage certificate was not produced, and
the further hearing of the case was postponed till
the receipt of the certificate from England.
DESSAUEB V. DESSAUEB.
Mr. Searle for plaintiff ; the 'defendant in
default.
Rule nisi granted, calling upon defendant to
show cause why a decree of divoroe should not be
granted.
SUPREME COURT.
TUESDAY, FEBRUARY 3.
[Before the Chief Justice (Sir J. H. DE
VILLIEB8), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
REOINA V. BBIEL.
Mr. Justice Buchanan, in reviewing this case
which had come from the Special Justice of the
24
Peace at Calitzdorp, remarked that the aooused
was charged with contravening Aot 18 of 1878,
section 2. He was engaged to accompany the
complainant on a fifteen days' journey, bnt failed
to fulfil his engagement. As the section only
applied to servants employed on farm work, or
engaged in agriculture, and as the accused had not
been so engaged and had been charged under a
wrong section, the conviction must be quashed.
IN THE MATTES OF MA BG ABET MARIA
HOB8PALL.
On the motion of Mr. Graham, the discharge was
granted under the 117th section of the Insolvent
Ordinance.
THOMAS ABTHUB ASKBW V. JOHANNES
MABTHINUS MOLLEB.
Mr. Graham, on behalf of the applicant, asked
that the rule nisi granted on the 22nd January,
1891, might be made absolute.
The Court ordered the debt to be attached,
notice of the attachment to be served on the
defendant and on the Registrar of Deeds, and to
be published in the Government Gazette, so much
of the rule nisi to be made absolute as gave leave
to the applicant to sue by ediotal citation.
BOSS V. SCOTT AND ARMSTBONG.
Partnership — Statement of account— Alleged
breach of agreement — Dissolution by
mutual consent — Counter-claim.
Mr. Searle, with Mr. Jones, appeared for
plaintiff.
Mr. Schreiner, with Mr. Castens, for the
defendants.
From the opening statement of counsel it
appeared that this was an action instituted by the
plaintiff to recover the sum of £827 1b. 10d.,
alleged to be due to him upon a statement of
partnership accounts. The declaration alleged
that the plaintiff and defendants entered into
partnership as brokers on the 1st August, 1899;
that the partnership was dissolved by mutual
consent on the 81st October, 1889 ; and claimed
the sum of £327 Is. lOd.
The defendants in their plea denied liability,
alleged that plaintiff had failed according to agree-
ment to contribute £1,000 to the partnership, and
counter-claimed for £509 0s. lid. Upon these
facts issue was joined.
Mr. Ross, the plaintiff, on being examined by
Mr. Searle, stated that he was in business in Gape
Town as a broker in July, 1889, and that his
business was a flourishing one. Towards the end
of July the defendant Scott came to him and told
him that he was very dissatisfied with Armstrong's
business capabilities, and that if he and plaintiff
were to enter into partnership they ought to do
very well ; subsequently it was agreed that Arm-
strong should continue a member of the fins.
Soott mentioned that it would be well if plaintiff
could either contribute £1,000 to the firm or find
security for that amount, as Armstrong was pre-
pared to find a similar amount. He told Scott
that he was prepared to contribute £1,000 if he
and Armstrong also put in £1,000 each. He had
scrip at that time worth about £700, and he could
have drawn upon his brother in Klerksdorp for
the balance. Witness further stated that he had
contributed £186 5s. to the firm, being the proceeds
of fifty Exchange shares sold by the firm, that he
valued his own furniture at £41 15s., and the
furniture supplied subsequently to the firm at
£82 6s. 5d. He remained in the business about
three months. During the first month the firm
had done very well, but in the second month
business began to fall off. When Scott spoke to
him about contributing £1,000 he said he was
ready to do so if Armstrong contributed a similar
amount. The boom was on, and the firm made,
according to Armstrong, £2,000 in the first month
of the partnership. When he had been in the
firm a short time he found that clients complained
of the methods in whioh business was being done.
He told Scott about the middle of October that
he would leave the firm at the end of the month.
Mr. Armstrong went te the Rand about the 21st
October on business, but he did not consider that
he would be entitled to any share in the profit
whioh might have been the result of that trip.
He was doing a very good business before he went
into partnership with Scott & Armstrong; bis
turn-over in July was £22,000.
Cross-examined by Mr. Schreiner: The turn-
over of the firm in August might have been
£182,000. He could not say when Scott first asked
him to enter the firm, but he thought it was one
day after 'Change as they were walking down
towards the jetty. He was introduced to the
manager of the Bank of Africa as a new member
of the firm, and promised to transfer his balance
from the Cape of Good Hope Bank. Armstrong
was never present when the £1,000 was mentioned.
Mr. Scott never insisted on his putting in the
£1,000. He frequently mentioned the matter, but
always said that be would pay in his £1,000 when
Armstrong had paid his. Mr. Graaff was first
suggested to him by Scott as a surety. He did
sign a document that he would be liable for one-
third of all losses sustained whilst he was a
member of the firm. He did not borrow £100
from Scott on the 81st October. He considered
that that amount was due to him.
Mr. Schreiner: Your means at present are
rather limited, Mr. Ross? If judgment ware
given against you for £500, could you satisfy it ?
2&
The Chief Justice: With what view is that
question asked ?
Mr. Schreiner : To show plaintiff's position with
regard to defendants.
The Chief Justice : I don't know what plaintiff's
present position has to do with the matter.
Mr. Schreiner : It is a matter of credibility.
Messrs. Scott & Armstrong were only too glad to
wash their hands of Mr. Boss.
The Chief Justice : The witness may be in the
most reduced circumstances at present, and may
hare been a wealthy man in October, 1889 ; so why
should you put the question now — it is utterly
irrelevant ?
Mr. Frost Bonnes, accountant, was examined
and gave evidence as to certain items in dispute.
Mr. Scott and Mr. Armstrong in their evidence
denied most of the statements made by the plaintiff.
Mr. Kirkxnan, the firm's bookkeeper, and Mr.
George Cosnett were then examined.
Upon the conclusion of the arguments of counsel
the Chief Justice delivered judgment. Ue re-
marked that there were three matters in dispute :
(1) As to whether plaintiff was liable for a third
of Armstrong's expenses to the Band ; (2) as to
whether the furniture had been fairly valued at
£33 16s.; and (3) whether plaintiff was liable to
contribute £1,000 to the firm. With regard to the
first point, the Court were of opinion that plaintiff
was a partner when these expenses were incurred,
sod therefore was liable for a third share. With
regard to the second point, they considered £88 16s.
a fair value for the furniture. Regarding the last
point, they were of opinion that there was not
sufficient evidence of an agreement tnat the
plaintiff should contribute £1,000 to the firm.
Judgment would be for the plaintiff for £117 9s. 6d.
with costs.
SUPREME COURT.
WEDNESDAY, FEBRUARY 4.
[Before the Chief Justice (Sir J. H. DB VlLLlERS),
Mr. Justice SMITH and Mr. Justice
Buchanan.]
levin v. garlick.
Interdict on money in hands of third person
—Set-off — Promissory notes not yet due —
Contempt of Court
Mr. Schreiner and Mr. Castens for plaintiff*
Mr. Searle and Mr. Molteno for defendant.
This was an action instituted by the plaintiff
against the defendant and Johnson & Co., of
Klerksdorp, for the sum of £75 7s. 8d.
£
It appeared from the opening statement of Mr.
Schreiner that on the 28th October last a rule nisi
had been obtained which operated as an interdict
to restrain defendant from paying to anyone
except the plaintiff certain moneys belonging to
the firm of Johnson & Co., but on that date in the
possession of the defendant Garlick. The money
in question (£1,588 6s. 4d.) had been handed over
to the defendant Garlick by the Commercial
Insurance Company of Cape Town, in satisfaction
of a claim by Johnson <fe Co., in respect of a policy
of fire insurance, their premises in Klerksdorp
having been destroyed by fire in August last.
It farther appeared that the defendant refused
to pay Levin his claim, and in violation of the
interdiot set off the money in his hands against
oertain promissory notes accepted by Johnson
& Co., in favour of the defendant, but not
yet dne.
Mr. Garlick, examined by Mr. Searle, stated that
he had had dealings with Johnson <fe Co., of
Klerksdorp, and in fact supported that firm. In
August last he received a wire informing him that
the premises of Johnson <fe Co. had been destroyed
by fire. A few days afterwards he received a
letter from Johnson & Co., covering policy of
insurance, and giving him instructions to pay
Levin £76 7s. 8d., as soon as he had recovered the
amount of the policy from the Insurance Company.
The Insurance Company did not pay the money at
once, as they were making inquiries into the
circumstances attending the fire. Mr. Levin
called upon him and asked him to guarantee
the payment of his debt. Witness refused
to do so unless Mr. Levin allowed him 10
per cent, on the amount for the risk he
ran. The plaintiff declined to do this and he
refused to pay him the money. On 21st Ootober
he received £1,538 6s. 4d. from the Commercial
Insurance Company, and on the following day
he received a wire from Johnson & Co., instruct-
ing him to immediately wire that firm £50 and to
retain the balance. Levin called upon him the
next day when he showed him Johnson's wire.
He then again refused to pay plaintiff on the
grounds that he had no authority to do so, but
told him that Johnson would be in Cape Town in
a few days. The interdiot was granted on the
28th October. Ue held two bonds as security
from Johnson <fc Co., one fer £700 and the other
for £600. Ue saw Johnson on his arrival, and they
came to an arrangement that the money in
witness's possession was to be set off against
Johnson's account, and that the bills were to be
returned to Johnson. Johnson was unwilling that
he should pay Levin, but he (witness) was willing
to make an arrangement with Levin. He had no
misunderstanding whatever with Mr. Levin.
The Chief Justice: There was no misunder-
standing, but you looked after yourself (Laughter.)
26
The witness further stated that he gave Mr*
Johnson £55 before the latter left Cape Town.
Cross-examined by Mr. Sohreiner : He did not
agree to pay Mr. Levin, bnt he would have done so
had it not been for the wire of the 22nd October.
He was served with the interdiet on the 28th
October. He did tell Johnson that he oould pay
no one owing to the interdict. Johnson was net
annoyed because he had not paid Levin.
Baptist Hogset, defendant's bookkeeper, was
called, and corroborated the defendant's evidenoe
respecting the interviews of Levin and Garliok
with regard to the guarantee and the giving up the
bills to Johnson.
Mr. Arthur George Syf ret proved that he, as
representing a Port Elizabeth firm, had a claim of
£215 against Johnson & Co., which he subse-
quently ascertained had been settled.
Mr. Searle then proceeded to argue in support
of the defendant's oase.
The Chief Justice : Well, Mr. Searle, your client
has been guilty of disobeying tne order of the
Court, though it is dear he had no intention of
doing Be. We shall therefore plaoe him in exactly
the same position as if he had net disobeyed the
order of Court.
Mr. Searle : Well, my Lord, if that is the oase,
the more logical course would be to oemmit him
for contempt of Court. (Laughter.)
The Chief Justice : We shall be more merciful
to year client than you seem to be. (Renewed
laughter.)
The Chief Justice, without oalling upon Mr.
Sohreiner, delivered judgment to the following
effect. The plaintiff wishing to sue Johnson <fe
Co., whioh firm was not domiciled in the Colony,
obtained an order of Court attaching money in
Garlick's possession. If at the time of the order
Mr. Garlick was entitled to set off the money
against debts owing to him the order] of Court
would not have affeoted him. But the facts are
that there were no debts due ; the promissory
notes had not yet fallen due. Mr. Garlick must
be placed in the same position as if he had paid a
third party. Judgment will be for the plaintiff
with costs.
LANE AND HOLMES AND SON V. SORENSEN,
IN BB "SAGA."
Ship — Cesser of charterer's liability —
Lien by shipowner for freight, dead freight
and demurrage — Custom of port — Case
gorerned by English law.
Sir T. tTpington, Q.C, and Mr. Sohreiner, for
appellants.
Mr* Searle and Mr. Molteno for respondent.
This was an appeal from the Court of the
Batten Districts. The oase was tried before the
Judge-President in Port Elizabeth, when the
respondent, the captain of the Norwegian barque
" Saga," sued the appellants (the defendants in the
Court below) for £862 10p., demurrage and
damages alleged to have been sustained by delay
in discharging his ship. It appeared from the
evideooe, which was very voluminous, that on the
24th of May, 1889, a charter party was entered
into at London between Messrs. Hofman, Sohenk
<fe Co., agents of the barque Saga, and Henry
Marriott, agent of Walter Lane. By the charter
party it was agreed that the Saga should proceed
to Fredrikstad, in Norway, and there lead from
the factory of Walter Lane a full cargo of timber,
and after loading, should proceed to Algoa Bay,
in this colony, and there deliver the same to the
said Walter Lane, or his assigns. The "Saga"
arrived in Algoa Bay on December 6, 1889, and on
Deoember 7 Captain Sorensen gave Lane notice
of his arrival, and ot his readiness to discharge.
On the same day Lane informed Sorensen that
Holmes <& Son were the holders and indorsees of
the bills of lading, and authorised the delivery of
the timber of them. Sorensen then gave Holmes
<fe Son notice that he was ready to deliver the
timber. Holmes <fe Son admitted that they were
the holders of the bills of lading, and accepted all
responsibility as suoh under the same. The bills
of lading were made subject to demurrage and all
other conditions as per charter party. It appears
that just at this time there was an unusually large
number of ships awaiting discharge in Algoa Bay,
and that the boating companies had great difficulty
in coping with the work, in consequence of which
the " Saga" was net discharged till 11th March, 1890.
On the 18th October, 1890, by consent and request
of parties, judgment was entered for the re-
spondent for £188 10s. and costs. From this
judgment the appellants now appealed.
The arguments are sufficiently set forth in the
judgment, whioh was delivered on the fallowing
day.
SUPREME COURT.
THURSDAY, FEBRUARY 6.
Before the Chief Justioe (Sir J. H. DE
Villiebs), Mr. Justice SMITH, and Mr.
Justioe Buchanan.
LANE V. SOBENSEN.
The Chief Justice, in giving judgment, said :
This was an action for demurrage brought in the
Port Elizabeth Circuit by the master, on behalf
of the owners, of the barque " Saga" against the first
defendant, Lane, as charterer of the vessel, and
27
the second defendant, HolmM, as reoeiver of the
cargo under a bill of lading. The charter party
contained the following provisions : " Cargo to be
brought alongside and taken from alongside at
the charterer's and consignee's risk and expense.
To be discharged as fast as the custom
of (he port will allow, and ten days on demurrage
over and above the said lying days at 4d. per ton
register per day. . . . This charter being
entered into by the charterer as agent for others,
his liability shall cease as soon as the cargo is
shipped, bat captain to have a lien upon the cargo
for all freight, dead freight, and demurrage.
.... The words demurrage and all other con-
ditions as per charter to be inserted in the bills of
lading. The ship to be addressed to Mr. W. Lane,
Port Elizabeth, paying 2$ per cent, commission on
the gross amount of freight." The vessel arrived
in Algoa Bay on the 5th of December, 1889, and
on the 7th of that month the plaintiff gave notice
of her arrival to Holmes, and asked him to give
her a quick despatch. On the 23rd of December
the first defendant wrote as follows to the plaintiff :
U I, the consignee of year ship, the " Saga," hereby
authorise yon to deliver your cargo of deals, Ac,
to Messrs. T. Holmes A Sen (the second defend-
ant), of this town, and hold yon harmless from
any louses occasioned by your so doing, instead of
to myself." The discharge of the cargo was
commenced on the 16th December, 1889, and was
completed on the 27th of February, 1890. The
plaintiff, in his declaration, alleged that, according
to the custom of the port, the vessel could with
ease have been discharged before the 21st of
January, and claimed the sum of £362 10s. as
demurrage. The case was heard before Sir J.
Barry at the Port Elizabeth Circuit Court. The
first defendant pleaded in effect that his liability
had ceased y according te the provisions of the
charter, as soon as the cargo was shipped, and
that, as he was only the addressee of the ship and
not consignee of the cargo, no further liability
attached to him. The second defendant, while
admitting that he was the holder and endorsee of
the bill of lading, and had accepted all responsi-
bility as such, and that the bill of lading was
made subject to the demurrage and other condi-
tions of the charter, put the plaintiff to proof that
Marriott, the nominal charterer, was the agent of
the first defendant. Both defendants denied the
allegation that the cargo had not been discharged
as fast as the custom of the port would allow.
The Court decided against the defendants on all
grounds, and gave judgment against them for
£198 10s., being demurrage for twenty-six days
from the 1st of February, 1890, at £7 6s. per day.
Against this judgment the defendants appealed,
but owing to the insolvency of the second
defendant his appeal has fallen to the ground, and
the liability of Lane alone remains to be con-
sidered. The main question raised on appeal is
whether, assuming that demurrage was payable,
the appellant is liable to pay it in whole or in
part? The learned judge held that until the
cargo was shipped both Marriott and Lane were
liable, but that inasmuch as Marriott was the
agent for Lane his liability ceased and that of
Lane continued as charterer. " I cannot think,*'
he adds, " that it was ever contemplated by the
owners to abandon the claim which the law gave
them against the undisclosed charterer." It is
unnecessary, in the view whioh I take of this
case, to consider the law relating to the liability
of undisclosed principals, because, in my opinion,
the object of the cesser clause was to release the
charterer, whoever he might be, from liability.
To apply the language of Lush, J., in "Chris-
toffersen v. Hansen " (L.R. 7, Q B. 609), the lien
given to the shipowner on the cargo for demurrage,
as well as for freight, was an equivalent advantage
for absolving the charterer altogether. The
charter states that it was " entered into by the
said oharterer as agent for others,'* and because
the only person whose name appears on the charter
party as- oharterer is Marriott, it is contended that
his principal, although oharterer, was net intended
to be released from liability for demurrage as soen
as the cargo was shipped. But, for the purposes
of the charter party, Marriott and Lane were
really one and the same person, and the others for
whom Marriott, as representing Lane, was agent
was the intended consignee of the cargo, viz.,
Holmes. His firm imported the timber, of which
the cargo consisted, through Lane, who employed
his London agent to enter into the charter party
for him. Any benefits, therefore, intended to be
given to the oharterer were intended for Lane
equally with Marriott. Certainly the reason
which have induced the Knglish Courts to absolve
, the charterer in several cases under the ordinary
cesser clause would equally apply where that
clause is prefaced by the statement that the
charter is entered into by the nominal charterer
as agent for others. I quite agree with the view
that in the decision of this oase the Court should
be guided by the English law, and 1 therefore
proceed to refer to a few of the English oases. In
" Bannister v. Breslauer " (L.R 2, C.P. 497) the
oharter party contained the following clause:
u The charterer's liability on this charter to cease
when the cargo is shipped, provided the same is
worth the freight en arrival at the port of
discharge, the captain having an absolute lien on
it for freight, dead freight, and demurrage, whioh
he, or owner, shall be bound to discharge." It was
held by the Court of Common Pleas that the plea
that the cargo was worth the freight on arrival at
the port of discharge was a good answer to an
action by the shipowner against the charterers for
delay in loading the vessel. All the judges laid
28
strew upon the circumstance that the charter gave
a lien upon the eargo for demurrage, and Keating,
J., added : " I do not think it is straining the
language of the charter party to say that the
charterers meant to free themselves from all
liability, in respect of which the plaintiff would be
obliged to have recourse to an action upon the
charter party." In " Franceto v. Massey " (L.R.
8, Ex. 101), a charter party made by the plaintiff
to the defendant contained the following
olause : "Charterer's liability to cease when
the ship is loaded, the captain having a lien
upon the cargo for freight and demurrage." It
was held that the lien extended to demurrage
at the port of loading as well as at the
port of discharge, and, as a consequence that
the ship having been loaded, the charterer could
not be sued for demurrage incurred during the
loading. Bramwell, B., referred with approval
to the reasoning of Lush, J., in the case whioh I
first cited and added : " And so he holds liability
for freight is given up but not liability for
damages from delay in loading, because there was
a lien for freight but none for such damages." In
the present case much stress was laid by the Court
below on the argument that Lane was consignee
of the cargo as well as charterer of the ship. " In
the absence of any other evidence," said Barry, J.,
" Lane, the addressee and charterer, must be
assumed to be the consignee. This character,
moreover, Lane does not repudiate when
addressed as such. Nothing could be a clearer
admission by Lane that he was consignee than
when on December 28 he addressed the plaintiff
by letter," in which he refers to himself as con-
signee. I do not find among the correspondence
produced any letter addressed to Lane as consignee
to whioh this letter of December 23 is an answer.
In this letter Lane speaks of himself as "consignee
of the ship" and not of the cargo, and it is quite
possible that he used the term in the loose sense in
which it is often employed as meaning the person
to whom the ship has been addressed. But even
if he meant to say that he was the consignee of the
cargo, the admission ought not to be pushed against
him further than the actual facts would justify.
In fact, according to the evidence of Forbes,
which is uncontradicted, the bill of lading came by
post, and was sent by Marrlett through the bank
to Lane. Lane notified to Holmes (the second
defendant) that the bill of lading was at the bank
and that Holmes was to provide for the payment
of the draft whioh Marriott had drawn against the
bill of lading. Taking this evidence in connection
with the fact that Holmes had ordered the timber
through the agency of Lane, it is difficult to hold
that Lane and not Holmes was the real consignee
ef the cargo. Even if he was consignee it wonld
not follow that he is liable in an action brought
against him solely as charterer. An instructive
case upon this point is that of " Sanguinetti v.
Pacific Steam Navigation Company (L.R. 2, Q.B.
Div., 238) which is not referred to in the learned
judge's reasons. That was an action for demurrage
against a charterer who was also consignee of the
cargo. The defence was that the liability of the
defendant had ceased on the loading of the cargo.
This defence was sustained, and it was held there
was a lien for demurrage, that therefore the oesser
ef liability olause applied, and that the fact that
the defendant himself was consignee as well as
charterer made no difference in the construction
of the olause. The case is a very strong one,
because the defendant's agent had himself re-
quired the plaintiff to deliver the cargo without
enforcing his lien for demurrage. Mr. Benjamin,
as counsel for the shipowner, pointed eut that the
case differed from all others reported on the
subject inasmuch as in other cases the charterer
and consignee of the goods were different
persons. " The general custom," he said, " is fer
the merchant abroad to employ a correspondent in
England to charter the ship and consign the goods
to him. The charterer has no interest in the
matter after the 6hip has sailed. But here the
charterers and consignees are the same persons,
and they stipulate that instead of paying the
freight and demurrage and other charges in
England, their agent, who will receive the goods,
shall settle them at Callao. The lien on the cargo
was only a collateral security, and the plaintiff
can give that up without giving up his right to
the debt." The Justices of Appeal, however, were
not convinced by theBe forcible arguments. " In
my opinion," said Hellish, J. A., " according to
the true construction of the charter itself the
defendants were free from all liability on the
ship's sailing after it was fully loaded. In my
opinion the liability did not revive merely because
no settlement was arrived at * ith the charterer's
agent, and the shipowner ought to have enforced
his lien." Brett, J. A., said : " I come to the con-
clusion that in this charter party there is a lien
for the detention of the ship at the port of loading.
There was therefore a right of lien in the hands
of the captain upon this cargo in respect of the
claim for detention. If that be so
the absolving clause here, unless it is to be dis-
tinguished from the absolving clauses in other
charter parties in former cases, will clearly, accord-
ing to the authorities, absolve the defendants from
any claim in respect ef any detention at the port
of leading." In the present case the detention
was at the port of discharge, but the principle
applicable is the same. The action proceeds upon
the assumption that it would have been possible to
discharge the cargo with greater despatch than that
which was shown. When it appeared that the
cargo would not be discharged within a reasonable
time the plaintiff might have landed it himself,
29
and thus retained his lien for demurrage. What-
ever action he may have against the first defendant
on other grounds, he has no action against him for
demurrage under the charter party. Ab charterer
he is absolved from liability for demurrage at the
port of discharge. If he is not liable as charterer
he can only be liable if he claimed and reoeived
the goods under the bill of lading. His letter of
the 23rd December may or may not amount to a
guarantee for demurrage, but the action does not
proceed on that ground. Nor does that letter show
that he ever claimed the goods as consignee. The
true explanation of the letter appears to me that,
owing to the defective form of the bill of lading,
the captain required an indemnity for delivering
the goods to the holder of the bill ef lading. But
whether this explanation be the correct one or not,
we have the uncontradicted evidenoe of the
appellant that he had no interest whatever in the
cargo as consignee, and that he had no connection
with the defendant Holmes except as charterer,
through Marriott, of the ship. The fact that he
afterwards made common cause with Holmes in
the defence of the action, or that his attorney
made use of expressions in the correspondence
placing him on the same footing with Holmes,
cannot alter his legal position. As charterer he
hat, through his agent, stipulated to be relieved
from liability for demurrage, and he has never
taken upon himself the liability of consignee by
recti v ng the goods. Under these circumstances
it becomes unnecessary to consider whether
demurrage was payable at all. That is a question
of fact, depending, however, not upon the
credibility of the witnesses, but upon the correct-
ness of the inferences drawn by the Court below
from facts which in the main are undisputed.
Prima fade the detention of the Bhip was
onreas nably long, and I certainly think tbat the
onus lay up *n the party who would be responsible
for demurrage, if any, to explain the delay and to
prove that he had employed all the usual methods
of despatch according to the custom of the port of
Algea Bay. Upon this point very strong evidence
was given for the defendants, but I prefer to rest
my judgment upon the preliminary objection
raised on behalf of appellant. For the reasons
aheady stated his appeal must be allowed, with
eosts in this Court and in the Court below.
DE KLERK V. DE KLERK.
Mortgage Bond — Provisional sentence post-
poned where Mortgagor had denied his
signature.
8irT. Upington, Q.C., prayed for provisional
judgment on a mortgage bond for £3,000.
Mr. Juta, on behalf of the respondent, opposed
the motion, on the ground that the respondent
denied his signature, and asked that the matter
might stand over for fourteen days.
Counsel having agreed that the evidence of one
of the witnesses to the bond, Mr. J. D. Cilliers,
should be taken on commission, the matter was
postponed for three weeks.
WESTERN PROVINCE BANK V. MALHERBE.
On the motion of Mr. Molteno, final adjudica-
tion of this estate was granted.
STANDARD BANK V. BOBEBTSON AND BAIN.
Mr. Schreiner, on behalf of the Standard Bank,
moved for the final adjudication of the firm's
estate.
Mr. Juta, who appeared for the executors of
Bain, argued at great length that Bain had ceased
te be a partner of the firm in 1888, and directed
the attention of the Court to an agreement made
in that year for dissolving the partnership, and to
a subsequent agreement made in 1889, varying in
some respects the terms of payment of Bain's
share of the assets.
Mr. Schreiner contended that Bain had never
ceased to be a member of the firm, and in support
of his contention called the attention of the Court
to the record of a case tried in the Supreme Court
some time before Bain's death, during the hearing
of which Bain admitted that he was at that time a
member of the firm.
The Court made absolute the rule applied for
with costs. Sequestration only ordered as to the
estate of the firm.
IN THE INSOLVENT ESTATE OF BOBEBTSON
AND BAIN.
On the motion of Mr. Schreiner, Mr. Herbert
Wilman and Mr. John Watson were appointed
provisional trustees.
LIQUIDATOBS CAPE OP GOOD HOPE BANK V.
HENRY HEATH.
Mr. Schreiner applied for the final adjudication
of the defendant's estate. — Application granted.
LOUW AND CO. V. J. J. THEBON.
On the motion of Mr. Webber, provisional judg-
ment was granted for £264 12s. 8d.
BEHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : John Smith
and Charles William Wallace,
80
PETITION OF ADA EMILY PETERS.
Mr. Jones applied, on behalf of the petitioner,
for the issue of a commission appointing the Resi-
dent Magistrate of St. Mark's to take petitioner's
evidence in the suit instituted by her against her
husband for restitution of conjugal rights, failing
which for divorce.
PETITION OF ELEANOB G. W. HTLAND.
Mr. Searle appeared for petitioner ; Mr. Molteno
watched the proceedings on behalf of petitioner's
brother-in-law.
Mr. Searle asked for the appointment of peti-
tioner and Mr. William Thome as curators of the
estate of petitioner's husband, James 6. L.
Hyland, who, it was alleged, is unable, through
defective mind, to attend to his affairs.
The Court ordered that a summons should be
issued in the ordinary course, calling upon the
husband to show cause why his estate should not
be placed under a curator. Mr. Graham was ap-
pointed curator ad litem.
PETITION OF HENRY H. OLIVIER AND OTHERS.
Mr. Searle moved for authority to the Registrar
of Deeds to pass transfer to petitioners the
remainder of the farm Heimer's Rivier, the same
having been purchased by them but not trans-
ferred by reason of an error.
The necessary authority was given.
THE UNION BANK, IN LIQUIDATION.
Securities in possession of Bank — Refusal to
realise — Legal rate of interest.
Mr. Schreiner presented the following petition
from the liquidators of the above-mentioned
bank : That the Standard Bank of South Africa
were, at the date of the winding-up order of the
Union Bank, creditors of that institution for the
sum of £219,060 or thereabouts, which has been
reduced in various ways to a sum of £146,420,
exclusive of interest. The Standard Bank
holds the bulk of the securities of the • Union
Bank as security for the due repayment to them of
the Union Bank's indebtedness. These securities
consist chiefly of promissory notes and bills of
exchange, with scrip attached, upon which
Wilhelm August Lippert and other insolvent
persons are liable. The Standard Bank has
not proved any claim against the estate of
Lippert or the other insolvents, for the reason
that they say they hold the great bulk of their
securities merely as collateral security for the
indebtedness of the Union Bank, and that they do
not therefore consider it incumbent te prove for
these securities, as they are satisfied the Union
Bank will be able to pay 20s. in the £. That the
Standard Bank refuses to hand up for realisation
to your petitioners the securities held by them
and received from the Union Bank until their
claim is paid, or unless some satisfactory arrange-
ment is entered into. That it is impossible to
satisfy the claim unless your petitioners are in a
position to deal with the securities held by the
bank, a large proportion of whioh are attached to
paper bearing the name of A. Beit, which are
alleged to be. forgeries, and your petitioners are
also unable to take proceedings to test the validity
of the debts due by virtue of the alleged forged
bills. That your petitioners are of opinion that
they could not force the Standard Bank either to
hand up the securities for realisation or to teat
the validity of the alleged forged bills ; that for
the above reasons, the liquidation of the Union
Bank is retarded and delayed. That your peti-
tioners and the manager of the Standard Bank
have discussed the matters referred to in the
premises, and the manager has written your
petitioners as follows : " For the purpose of
facilitating the liquidation, and in the interest of
all concerned, this bank is willing that an order of
Court should be obtained in the following terms :
(a) That the liquidators of the Union Bank be
authorised to take ever from the Standard Bank
all the bills discounted for the Union Bank, and
the shares and other securities in connection
therewith. (6) That the liquidators shall realise
the said bills and securities, and shall account to
the Standard Bank for the proceeds in account of
their olaim ; any deficiency on such olaim,
whether in the bills discounted with the Standard
Bank by the Union Bank, or otherwise, shall be
paid to the Standard Bank in due course by the
Union Bank (in liquidation), with interest at
five-and-a-half per cent.; the Standard Bank to'
be paid dividends at the same rate as other
creditors upon their claim, less agreed value of
securities, such agreed value to be subject to
adjustment hereafter." The petitioners are of
opinion that it will be to the interests of all con-
cerned in the Union Bank if the Court would
sanction such an arrangement.
Mr. Schreiner pointed out that if this arrange-
ment were sanctioned by the Court it would be to
the benefit of the contributories.
The Chief Justice : The arrangement seems just
aa much to be for the benefit of the Standard
Bank. He thought that the interest might be
reduced considering that the Standard Bank was
so satisfied that the Union Bank would pay 20s.
in the £. He was not sure that the Standard
Bank could not be compelled to realise the
securities or hand them over. Pledgees under the
Roman-Dutch law stood tn a different footing to
31
what they did by the law of England. Six per
cent, was the rate of interest usually allowed, bat
then was no authority for laying that 6 per cent.
was the legal rate of interest in this country.
The Court would not sanction the arrangement
unless the bank consented to reduce the proposed
interest from 5& to 6 per cent. The other question
was a very important one, as to whether the
bank could not be compelled to realise or hand
over the securities to the liquidators te realise,
and he would like to hear it argued before they
gave any decision upon it. The present applica-
tion would be taken as ratified, provided interest
were reduced to 6 per cent.
KOTZEE V. KOTZBE.
Mr. Molteno for plaintiff ; Mr. Graham for
defendant.
Decree of judicial separation granted, costs to
be paid out of the joint estate.
SUPREME COURT.
TUESDAY, FEBRUARY 10.
Before the Chief Justice (Sir J. H. De VlLLIEBS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.
THE PAABL BANK, IN LIQUIDATION.
Company — Bank in liquidation — Winding-tip
Act — Absconding contributory — Powers of
liquidators in such cases.
Mr. Sohreiner, who appeared on behalf of Mr.
L. ran der Byl, moved that leave might be given to
the applicant to proceed to Bngland by the R.M.S.
Athenian. It appeared from the statement of
Mr. Schreiner that the applicant is on the list as a
contributory to the above bank, that he had made
satisfactory arrangements for meeting the claims
of the bank against him, and that he had applied
to the liquidators fer their consent to his going to
Bngland, but that they had refused to grant their
eonsent until application had been made to the
Court.
The Chief Justice : What have we to do with
Mr. Van der Byl's going to Bngland ?
Mr. Schreiner pointed out that under the Wind-
ing-up Act powers were given to the liquidators
to have an absconding contributory arrested. In
this ease, however, there was no question of
absconding. Mr. Van der Byl was leaving with
the full knowledge of the liquidators, and had
made arrangements to meet any claim made
against him in his absence, but as the liquidators
were anxious, before giving their consent to
obtain the sanction of the Court this application
had been made.
Sir T. Upington, Q.C., who appeared for the
liquidators, did not oppose the application.
The Chief Justice : No order will be made, as
the application is an unnecessary one. If the
liquidators are of opinion that a contributory is
about to abscond it is for them to put the
machinery of the law in motion.
HTLAND V. HYLAND.
De lunatico inquireodo.
This matter was before the Court on Thursday
last, when an order was made for the issuing of a
summons oalling upon the defendant to show
cause why he should not be declared of unsound
mind and incapable of managing his own affairs.
The oase now came on for hearing.
Mr. Searle appeared for the plaintiff, Mr.
Graham for the defendant as curator ad litem, and
Mr. Molteno watched the proceedings on behalf of
the defendant's brother.
Mrs. Hyland (the plaintiff), called by Mr.
Searle, stated that she waB the wife of the defend-
ant, Mr. James Hyland, and had been married
about nine years, there being two children of the
marriage. Her husband was a shipwright. About
twelve months ago she for the first time
noticed something peculiar about her husband,
and during the past six months he had been
getting worse. He was not violent, but his
memory was very defective and at times he paid
no attention to anything going on around him ;
though sometimes he talked most rationally. She
was of opinion that in his present position he was
incapable of managing his own affairs.
Mr. Graham informed the Court that he had
had a prolonged interview with Mr. James Hyland,
and although the latter appeared to be very rest-
less in his manner and decidedly peculiar, still his
memory appeared to be fairly clear upon some
points, and he (Mr. Graham) could not consent to
the defendant being declared of unsound mind,
though he had no objeotion to a curator bonis
being appointed.
Mr. Molteno, in cross-examination, elicited from
the plaintiff that all tne correspondence which had
passed between her husband and his brother had
been written by her husband.
Dr. Alexander Abercrombie, examined by Mr.
Searle, stated that he /had known Mr. Hyland
about eight years, during which time he had
enjoyed good health up to about five or six months
ago. He had examined the defendant recently
and found him restless, stupid and dull, and his
32
memory very deficient. He was of opinion that
defendant was not capable of managing his own
affairs. He attributed defendant's mental weak-
ness in a great degree to drink.
Dr. Schultz corroborated Dr. Abercrombie's
evidence with regard to Mr. Hyland's mental
condition. The first time he was called in to see
Mr. Hyland he was of opinion that the defendant
was suffering from acute mania.
The defendant was then called, and said he
wanted someone to look after his affairs as he
sometimes felt unwell.
The Court found the defendant mentally unfit
to manage his own affairs, and appointed Mr. B. R.
By fret curator bonis, the defendant to have leave
at any time to have the appointment set aside
upon showing cause.
BEVEBN'S EXECUTORS V. ELY.
Balance of account — Action — Disputed items.
Mr. Schreiner and Mr. Jones for the plaintiff.
The Attorney-General and Mr. Watermeyer for
the defendant.
This was an action to recover the sum of
£62 178. 6d., balance of account alleged to be due
by the defendant.
Mr. Schreiner, in opening the case, stated that
the plaintiffs were the executors testamentary of
the late Henry Be vera, and that they carried on
the business of the deceased as furniture ware-
housemen and upholsterers in Gape Town, and
that the defendant was a livery-stablekeepe r
living in Rondebosch, and was formerly proprietor
of the Fountain Hotel, Pretoria. Defendant had
transacted business with the firm for some three
years or thereabouts, and in 1890 there i was a
debit balance against him of £243 2s. In April,
1890, the defendant paid by cheque £180 4s. 6d.,
leaving the balance of £62 17s. 6d. which was now
sued on. The defendant pleaded that the £180 4s.
6d. paid by him in April last was in full settlement
of his account. He further disputed several
items in the account rendered by the plaintiffs,
and counter-claimed for £61. The principal items
in dispute were as follows: (a) £25 12s., advertise-
ments inserted in the Cape A rgus and subscriptions
to that paper, which had been paid for by the
plaintiffs on behalf of the defendant ; (6) £21,
being for repairs to billiard- table cushions, also
paid for by plaintiffs ; (c) £10, cash advanced ;
\d) £6 6s. 6d., sundries.
Mr. Glement Modlin Gibbs, called by Mr.
Schreiner, stated that he was one of the executors
testamentary under the will of the late Henry
Severn, and one of the plaintiffs in the present
suit. The firm supplied defendant with furniture
1211887,1888, and 1889. He did not personally
sell any of the furniture ; he kept the books, and
did the correspondence. He remembered receiving
an order from Mr. Ely for a billiard-table. The
firm's agent in London was instructed to buy the
table and ship it by the first steamer. On the
arrival of the table it was forwarded to Mr. Ely.
No trade profit was charged, only a commission of
5 per cent. Mr. Bly at first declined to .take the
table on the grounds of its being too dear. When
another purchaser had been found, Bly consented
to take the table, and no complaints were made
about it. The olaim of £21 was for repairs
executed to billiard-table cushions at the request
of the defendant. On the authority of the defend-
ant, advertisements were inserted in the Cape
Argus, and subscriptions paid for that paper. He
saw Ely in November, 1889, and referred to the
amount paid to the Argus Company, when defend-
ant told him to try and reoover the amount from
the Fountain Hotel Company, Pretorir. Some
time previous, when he had heard that defendant
had sold the Fountain Hotel, he had written to
Ely to know if the advertisements in the Argus
were to be continued, but had received no reply,
and in consequence had continued the advertise-
ments. The £10 had been paid to defendant in
witness's offioe.
Cress-examined by the Attorney-General : He
took no personal part in selling, but his partner,
Mr. Alfred Be vera, could of course reduce the
price at which an article was marked. No trade
profit was made on the billiard-table, and the com-
mission of 6 per cent, was subsequently abandoned,
on defendant's complaint that the table was too
dear. He never made any agreement to make
good defects whioh might exist in the table. It
was one of Thurston's, and he considered that
quite sufficient to ensure its being a good table.
The £21 charged for repairing the oushions was
fair and reasonable. The £10 paid to Mr. Ely was
handed over in his presence to Mr. Rankmore.
He left for England on July 8, 1889.
Mr. Alfred Bevern, who corroborated the evi-
dence of the last witness, denied that he had met
defendant in August, 1889, or spoken to him on
the subject of the cushions.
Mr. Herbert Edward Riches stated that he was
the manager of Thurston's business in Cape Town.
Shortly after he opened cushions were sent to him
for repair. The cushions had been very badly
used. Mr. Ely came to his store, and asked if his
oushions were ready. The charge of £21 was
moderate, and was much less than would have
been charged if they had been sent to England.
William Edward Ely, examined by the
Attorney-General, stated that he told the plaintiffs
(Gibbs & Bevern) that if he could not get a
billiard-table from Peach & Co., of Kimberley, he
would give them an order for one on their under-
taking te supply any defects whioh might be found
391
in the table. When the table was
unpacked it appeared to be in good order, bat
afterwards hie customers complained that the
cushions were too hard and refused to play matches
on it. He never allowed his guests to sleep on his
buliard-table. He sold his hotel in February,
1889, and acquainted plaintiffs with the fact. He
arrived in Cape Town in June, 1889, and went to
tee Mr. Bevern on . the same day. Mr. Severn
told him that the cushions had not yet arrived.
Some time afterwards he met Mr. Bevern and he
told him that the cushions had been mislaid, but
that he would have them repaired at his own
(Bevern's) expense. He had paid Mr. Bevern £10
to pay for two tables which had been bought from
Mr. Stigant. In March, 1890, on receiving a
statement of his account, he had offered Mr.
Bevern £180 4s. 6d., in full settlement, but this
offer was declined, but subsequently accepted, by
Mr. Bevern, who came out one morning to see him
at his house in Bondebosch. — Defendant's wife
and son were then called, and corroborated defend-
ant's statements with regard to the billiard-table
and cushions.
After having heard the arguments of counsel,
the Chief Justioe remarked that the defence had
broken down on every point, and gave judgment
for the plaintiffs for the full amount claimed with
ootts.
SUPREME COURT.
WEDNESDAY, FEBRUARY 11.
[Before the Chief Justice (Sir J. H. DE ViLLIERS),
Mr. Justice SMITH, and Mr. Justioe
BUCHAHAN.]
BBQI9A V. KIYIKT MAN EL.
Venue — Change of.
On the application of Mr. Giddy, leave was
granted to have the accused tried at the Circuit
Court, to be held at Beaufort West next month,
for contravening section 16, sub-section 2, of Act
19 of 1861, for attempt to murder and for hone-
breaking.
WBIGHT V. WILLIAMS.
Fraud and misrepresentation — Principal and
agent — Principal's authority exceeded by
agent. Postponement owing to absence of
important witness.
8ir T.
Upinrton, Q.CL for the plaintiff; the
t in default This was an action for
damages on the ground of the defendant's fraud
and misrepresentation.
James Adam Wright, called by Sir T. TJpington,
Q.C., stated that he was the holder of a mate's
certificate. In October, 1889, he was engaged by
Captain Williams, the defendant, on behalf of the
firm of De Pass, to proceed with him as mate on a
sealing expedition. He (the plaintiff) was to
receive as payment £6 per month when em-
ployed as mate, £4 per month when sealing,
4d. a skin for every seal killed, and 16s. a tun on
the oil obtained ; these last two items being known
in the sealing expeditions as *' lay." He noticed
that the lay was not referred to in the articles, and
in consequence he refused to sign them, but on
Captain Williams assuring him that it was net
customary to enter the lay on the articles, and
that he would receive his lay all right, he signed
the articles. On his return from the sealing trip,
he put in a claim for £71 10s., which Captain
Spenoe, as De Pass's agent, refused to pay. He
then brought an action against De Pass, but only
got judgment for £28 10s. Subsequently De Pass
tried to sequestrate plaintiff's estate, but the
application was dismissed with oosts, whioh had
not been paid.
By the Court : Both before and after he signed
the articles, Captain Williams told him that it
was not customary to enter the lay on the articles.
He had served five months, four-and-a-half of
whioh had been spent in sealing.
William Quine stated that he lived in Cape
Town, and that he knew the defendant, Captain
Williams, by whom he had been asked in October,
1889, to engage a mate. He spoke to plaintiff, and
told him what the lay would be. He was present
at the shipping office when the articles were signed,
and heard Captain Williams tell plaintiff that he
would get his lay all right, although it had not
been inserted in the articles. The usual lay
allowed to a mate was as 6tated by plaintiff ; an
ordinary seaman would only receive half-lay.
Captain Williams had been up the coast for the
past five months, but before he left he told
witness that he had received the summons in
this case.
Captain William Peterssen stated that he had
been formerly captain of the Sea Bird, but that
Captain Williams had got command during his
illness. It was customary to give a lay to those
engaged in sealing. He was still in the servioe of
De Pass, but did not know if he would have to go
to sea again.
In answer to the Court : The lay had nothing to
do with the shipping office, and was not, as a rule,
entered on the articles. If he had engaged
Wright, he would only have given him Sd. per
skin, and 7s. 6d. per tun of oil. Witness further
stated that, although this had been Wright's first
sealing trip still he would have been entitled to lay.
34
Mr. Attorney H. P. dn Preez proved that the
taxed cests of defendant in the case of Wright v.
De Pass amounted to £62 lis. 8d., his own wit-
nesses* being £80 Is. 6d., which had been reduced
to £50.
The Chief Justice at this stage intimated that
it would be very desirable to have Captain
Spence's evidence, and if possible Captain
Williams's.
Sir T. Upington, Q.C., concurred, and the case
was postponed for further hearing until the
arrival of Captain Spenoe in Cape Town.
SUPREME COURT.
THURSDAY, FEBRUARY 12.
[Before the Chief Justice (Sir J. H. DE
VlLLlERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
GAPE OF (SOOD HOPE BANK V. ROBERTSON.
Provisional judgment on two promissory netes,
one for £400 and the other for £626, granted with
interest from 1st July and 1st August, 1890,
respectively.
JACKSON V. CUTTING.
Mr. Searle for plaintiff, and Mr. Juta for
defendant. — On the application of Mr. Searle, the
matter was allewed to stand over for a week.
COLONIAL GOVERNMENT V. MOBGENBOOD.
Provisional judgment granted for £27, less
£6 16s. 6d.
t REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted: Arthur
Robert Kyffin, Guttav Steffeck (released from
sequestration), AlbertUB Johannes Wilhelmus
Pretorius Nel, and Carl Fisher.
THE PETITION OF EDWABD B. A. GIBBON.
On the application of Mr. Graham, an order was
granted allowing petitioner to continue his articles
of clerkship with Mr. Gus. Trollip, attorney-at-law
and notary public, notwithstanding an interval of
non-service between 26th March, 1889, and the
present date.
TEENGS Y. GABLICK.
Evidence — Commission de bene esse.
Mr. Schreiner appeared for the applicant, and
Mr. Searle for the respondent. This was an
application for the issue of a commission to take
the evidence of a witness for the plaintiff, which
witness, Mr. John William Johnson, is at present
residing in Klerksdorp, in the South Afrioan
Republic. — The Court ordered a commission de
bene esse to be issued ; the plaintiff, however, to
use every endeavour to procure the attendance of
the witness at the trial, otherwise the expenses of
the commission would not be allowed.
IN THE ESTATE OF THE LATE JOHN MILLEB,
Trusteeship — Application to be relieved of—
Consent of joint trustee.
Mr. Juta presented the petition of Jane Rebecca
Miller, praying that she might be relieved of the
office of joint executrix and trustee in the said
estate. It appeared from an affidavit sworn to by
petitioner that her co-executor and joint trustee,
the Guardian Insurance and Trust Company of
Port Elizabeth, had oonsented to her relinquishing
the trust.
The Chief Justice, in granting the petition as
prayed for, remarked that good cause had been
shown why the petitioner should be relieved from
the trusteeship, the mere so as the Guardian In-
surance and Trust Company, an institution in
which the Court had the greatest confidence, had
oonsented.
PETITION OF ANNA M. MEIBING.
Mr. Graham moved, on behalf of the petitioner,
for leave te sue in forma pauperis, in an action
against her husband for restitution of conjugal
rights, failing whioh for divoroe.
Referred to counsel for his certificate.
IN THE ESTATE OF THE LATE WILLIAM
PRETORIUS.
Will — Alienation of landed property pro-
hibited — Quit-rent.
Mr. Schreiner moved for authority to sell the
landed property in this estate, in order to satisfy
certain claims for quit-rent. It appeared from an
affidavit read by counsel that the will of the late
William Pretorius contained a clause prohibiting
the alienation of one-half of the farm Retreat, in
the district of Maolear— the landed property re-
ferred te in the application. — Mr. Schreiner, on
the authority ef Sande, (Omnia Opera, Pan* III,
35
ftp. I, Sees. 1, 2, 8), contended that the
prohibition of the will was mull and void inas-
much as there was no person mentioned in whose
favour the alienation had been prohibited.
The matter was referred to the Master, informa-
tion to be given as to the amount of quit-rent due.
DALTON V. QUINE.
Mr. Oastens moved for leave to the defendant to
sign judgment against the plaintiff for failure to
proceed with his action.
As notice had not been served, the matter on
the application of counsel was allowed to stand
over.
GREENE V. BEVEBIDGE.
Mr. Schreiner moved for the issue of a oommia-
Bkm to take the evidence of a witness named
Briggs, at present residing in Durban, Natal.
Mr. Searle opposed the motion.
The Court ordered the commission to issue, and
appointed the Resident Magistrate of Durban
commissioner, and in the event of his being unable
to accept the office Mr. Attorney Carmichael, the
eommiBtion not to interfere with the hearing of
the ease this term.
IK THB ESTATE OF SAMUEL PHILLIPS.
Mr. Maskew moved for authority to the execu-
trix to raise a loan of £150 on mortgage of the
landed property in the estate, for the purpose of
effecting the necessary repairs and satisfying debts.
Matter referred to the Master and amount te be
fixed by him after inquiry.
IHSOLVEKT ESTATE OF BIOHABD H. AUNN.
Mr. Caotens applied for an extension of the time
in which the trustee is required to file the final
accounts by six months. — Leave granted.
INSOLVENT ESTATE OF DONALD D. HOUSTON.
Mr. Graham moved fer authority to the trustee
and to the Registrar of Deeds to pass transfer to
the purchaser of a certain farm called Vlakplaats,
situated in the district of Umzimkulu, Griqualand
East.
Mr. Justice Buchanan intimated that the matter
had come before him in Chambers, but he was
under the impression that it was in the form of a
process in aid of a judgment of the Resident
Magistrate. — The matter was again referred to the
learned judge for his consideration.
THE PAABL BANK, IN LIQUIDATION.
Company — Bank in liquidation — Shareholders
past and present. Application to place
past shareholders on list of contributories
refused on the grounds inter alia that the
liquidators had failed to show that any of
the debts owing by the bank had been
incurred before such past shareholders had
transferred their shares.
Sir Thomas TJpington moved, on the petition of
the liquidators of the Paarl Bank, for an order to
settle the list of contributories, fix the time for the
proof of debts, assess the amount of the call, give
liquidators power to effect compromises and pay
out dividends without first filing accounts,
sanction the appointment of an attorney, and fix
the liquidators' remuneration. ^
Mr. Searle appeared for Mr. G. J. Colliers and
Mrs. Elizabeth van Niekerk, to object to their
names remaining on the list of contributories
annexed to the liquidators 1 report.
Mr. Schreiner said he represented a considerable
number of persons aod estates, who applied to
have their names struck off. Altogether there
were 24 applicants.
Sir Thomas TJpington prooeeded to discuss the
question as to whether there was any authority te
go behind the registered shareholders at the
present time for the purpose of placing any former
shareholders on the list.
The Chief Justioe : Do I understand that all
the opposing shareholders oppose on the ground
that they have ceased to be shareholders before
the date of the winding-up ?
Mr. Searle : Yes, my lord.
The Chief Justice : But the dates at which they
ceased to be shareholders vary ?
Mr. Searle replied in the affirmative, and added
that there were several other grounds.
The Chief Justioe : Can you tell me, Sir Thomas,
whether the accounts er report show when the
debts were contracted in respect of which past
shareholders are now sought to be made liable ?
Sir Thomas Upingtoj) : I have no specific
accounts to that effect. What I have is merely on
affidavit. What they rely on is, that in certain
lists given to the Registrar their names do not
appear. ' »
Mr. Justice Buchanan: Wouldn't it also be
neoessary for you to show that the present share-
holders will not be able to pay the debts ?
Sir Thomas TJpington : It will be my contention
that in the circumstances that happened they never
ceased to be shareholders at all. The question
was (continued counsel), what was the position of
persons who were shareholders in unlimited con-
cerns like the Paarl Bank ? They must be looked
8*
upon in the light of partners in the oenoern, and
the liability which would attach to a former
partner would attach to anyone of the former
shareholders. Had any persons on the list, by
conduct of theirs or by anything that had happened,
shown that they had- released themselves from the
position of partnership in which they were placed ?
He submitted that the true state of the law would
be that if a person who was in the position of a
partner retired from the firm, without public
notice to any ef the creditors of the firm of his
retirement, he would still be considered in the
light of a partner, not only for the debts for whioh
he would have been liable up to the date when he
secretly left the firm, but for all debts of the part-
nership subsequently incurred, until he did give
publio netioe.
The Chief Justice, remarking upon the mode in
whioh notice was to be given, said it was quite a
modern custom to advertise the dissolution of a
partnership in the publio newspapers. Where was
the notice to be given? If in the Government
Gazette the chances were that nobedy would
see it.
Sir Thomas Upington submitted that the proper
machinery for giving notice was through the
Government Gazette, just as under the English law
the London Gazette was the legal medium. As
regarded the contention that the bank had been
previously dissolved) this was Dot in accordance
with the facts, whioh showed that it had never
absolutely expired, and he contended that the
liability continued until the actual winding-up.
Counsel then read a brief affidavit by the liquida-
tors, to the effect that a large amount of the debts
was contracted when the present applicants were
shareholders.
Mr. Bearle then addressed the Court on behalf
of his clients, arguing that as the bank's directors
were compelled to supply a list of shareholders and
other information to the Deeds Office, that was a
sufficient means of putting before the publio any
alteration in the constitution of the bank, or its
list ef shareholders; further, that there was net
sufficient to show that the debts were contracted
at a time when his clients were shareholders. He
relied also upon the argument that they were
barred from liability by prescription.
Mr. Schreiner submitted that the Court could
not order a late shareholder to pay the same debt
concurrently with a present shareholder. If he
had originally held five shares and he had sold
them to Baron Rothschild the liquidators would
naturally come on the Baron for the amount of
his liability, but could they also oeme upon him
(Mr. Schreiner) for a concurrent payment ef the
same debt? Proceeding, counsel briefly .referred
to the applicants he represented. One whose
estate he appeared for had been off the list for
thirty-six years, and was dead into the bargain.
In fact, he represented a number of estates of
deceased shareholders.
The Chief Justice, in giving judgment, said the
questions involved in the application were of great
importance, and he would like to give a formal
judgment, but at the same time he might state
they had already decided that the application to
strike out the names of all past shareholders
should be acceded to on the ground that it was
wholly premature on the part of the liquidators
to place the names of past shareholders, who had
bona fide transferred their shares, on the list at all.
In the case of " The Cape Commercial Bank v.
Hofmeyr " the Court said that until it appeared
that the contributories on the list were unable to
meet the liabilities of the bank they could not
entertain any application for adding to the list
the names of shareholders whose shares had been
bona fide transferred before the date of the
winding-up. In the present case there was no
dear evidence to show that the contributories on
the list A were unable to meet the liabilities of
the bank. There was no doubt a statement in the
report whioh suggested that it was possible the
present shareholders would not be able to pay,
but it did not go further. He was also reminded
that there was a further affidavit to the effect that
the liquidators had eome to the oonolusion that
after all present shareholders had been exoussed
there would be a deficiency of £57,000, but he
thought they should go further, and that there
should be an account framed from whioh it would
clearly appear that this would be the result. And,
moreover, before any past shareholder oould be
sued, it must be clearly shown that the share-
holder to whom he had transferred his shares was
unable to pay. There had been no excussion, as
in the case 6t Hofmeyr. But, supposing it was
proved that the contributories were unable to
meet the liabilities, the further question arose
whether any person who oeased to be a shareholder
before the winding-up, oeased to be a shareholder
at a time when any of the existing debts of the
oompany were owing. In his opinion no share-
holder could be held liable for any debts incurred
after he oeased to be a shareholder. In his
opinion, also, the notice in the Registrar of Deeds*
office stood in the plaoe of a notice in the
Government Gazette or the public newspapers, and
that it was sufficient notice to persons dealing with
the oompany as to who were shareholders in it.
The application to strike out the names of all
those persons who had transferred their shares
before the winding-up came into operation must
be granted. At the same time, it was understood
that this would not bar the liquidators from
hereafter placing their names on the list, in case,
for instance, it oould be proved that debts were
owing by the bank at the time they oeased to
be shareholders. It waft no doubt quite true
ST
that the liquidators represented the shareholders,
bat it could mot be lost sight of that for certain
purposes they also represented the orediton, and
as at present advised he was inclined to think that
the orediton' claims against individual share-
holders were taken away by the Act, and that they
could only assert their claims through the medium
of the liquidators. If this were correct then,
under the Act of 1861 creditors had certain rights
against shareholders, and the only way the
liquidators could assert the creditors' rights was
by placing the shareholders on the list of con-
tributories. Accounts must, however, be framed
to show that at the time one ceased to be a
shareholder certain debts were owing, in respect
of which creditors oeuld sue him. In other words,
that no person could be placed on the list of
contributories, even on list B, unless it could be
shown that if the company had not been wound
up, there were creditors now in existence who
could sue him on the list.
Sir Thomas Upiagton remarked that he had
advised the liquidators to withdraw list B for the
present.
The Court then fixed the 31st March for the
proof of debts. Place of proof, the office of the
Pasrl Bank. The mode of proof to be the same
as in the case of the Union Bank. The amount
of the first call to be £260 per share, with interest
si 6 per cent, from date of call. The dividend not
to be less than Is. in the £. The appointment of
Mr. De Yilliers as attorney was sanctioned. The
remuneration of the liquidators to be a matter foe
after consideration. The oasts of only four sets
of respondents would be allowed.
Postea (February 16) the following formal
judgment was delivered.
The Chief Justice said : There are three classes
of past shareholders in ths Pasrl Bank who now
apply to have their names struck out of the list of
contributories. The first class oensists of the
representatives of deceased shareholders, the
second of shareholders who ceased to be such
before the last renewal of the period of the bank's
continuance, and the third ef shareholders, net
falling within either of the first two classes, who
had eeased to be shareholders before the order for
winding up the bank was made. All the appli-
cants, however, are either shareholders or
representatives of shareholders, whose shares had,
before the order, been actually transferred to and
registered in the names of the present shareholders.
In the view which I take of the case all the
applications may be considered together. The
first principles independently of statute which
should guide the Court in deciding the respective
rights of creditors and shareholders of joint-stook
^"ipanifs must be looked for in the common law
relating to partnership, and may be traced
farther hack to the common law relating to
mandate or agency. A partner, who is known to
be such to creditors dealing with his oo-partnera,
is liable for debts incurred by his co-partners, in
the name and on behalf of the partnership and
within the scope of its business. For the purpose
of carrying on the business his oo-partners are his
agents, but upon the dissolution of the partner-
ship the agency would also cease to exist except '
for the purpose of liquidating the affairs of the
partnership. It follows that fresh obligations
incurred by his ce-partners after the dissolution
ought not to bind him except in oases where
such a rule would lead to a breaoh of faith with
creditors. Such a case would oertainly arise where
a oreditor has given oredit to a firm upon the faith
of a former partner still being a member and in
ignorance of his having ceased to be such. Voet
(42, 17, 26)* in discussing the question whether the
renunciation ef a partnership by one partner should
be effected by apublio or private intimation, draws
a distinction between the oo-partners and creditors
who have dealt with ths partnership. As to the
former, he says that a private intimation is suffi-
cient, but as te the latter, he maintains that their
rights cannot be affected by a private dissolution.
As creditors, he says, who have contracted with
one of the partners and given oredit to the
partnership, they are entitled to receive notice, ,
either by a public advertisement or by a private
intimation, that an end has been put to the
partnership. The notice required to be given to
old customers I take to be a special one, for he
adds that it is required in order to prevent
creditors from being deoeived through their
ignorance of the dissolution, and that a creditor
who is not ignorant of the dissolution cannot take
advantage of the absenoe of a publio advertise-
ment. In the case of persons who had not dealt
with the partnership before the retirement of a
partner, a public notification of such retirement
would seem to have been sufficients According to
Pothier (" Partnership," sec. 166), if traders or
artisans who were accustomed to furnish supplies
to the partnership have bona Jide, after the dis-
solution of the partnership, of which they were
ignorant, continued to furnish these supplies to
one of the former partners, on account of the
partnership, all the former partners or their heirs,
will be bound. . . . Suppose, for instance,
they were ignorant of the death of one of the
partners, whioh was not yet known in the place
where they furnished the supplies, or were
ignorant of the renunciation of the partnership
made by one of the partners ; notice of the renun-
ciation not having been given to them, and not
having been made public." From these and other
authorities it seems clear that in order to relieve a
person from liability for fresh obligations incurred
by the firm to old oustomers after he has retired
from it, notice of his having so retired mutt be
38
proved to have been given to the customer to
whom the fresh obligation was incurred. Pothier
farther says : " When the traders or artisans have
furnished the supplies after the expiration of the
time for which the partnership had been con-
tracted, they cannot be heard to allege that they
were ignorant of its dissolution, because those who
have business with persons who are in partnership
ought to inform themselves of the terms of the
partnership." "This," he adds, "is the opinion of
Gomez (Var. Res., 2, 6, 6)," the same author and
the same passage cited by Voet in support of the
views I have quoted from him. The doctrine thus
laid down seems to follow, from the ordinary rule
in regard to agents, that persons dealing with them
ought to acquaint themselves with the nature and
extent of their authority, and is subject to the
same qualifications as the rule. Until the year
1861 the liability of all joint-stock companies,
except a few incorporated by special statute, was
unlimited. In regard to creditors dealing with
such companies, the shareholders were to all
intents and purposes partners, and were subject to
the oommon law relating to partnership. In 1861
the first Joint-stock Companies' Limited Liability
Act was passed, by which members of all joint-
stock companies, exoept banking companies, were
enabled to limit their liability for the debts and
engagements of such companies. The term
" joint-stock company " was defined as meaning,
for the purposes of that Act, " every partnership
whereof the capital is divided, or agreed to be
divided, into shares, and so as to be transferable
without the express consent of all the partners,
and also every partnership which at its formation,
or by subsequent admission, shall oonsist of more
than twenty-five members." The 12th section
provides that execution shall not issue against any
shareholder until after the company has been
excussed, and that no shareholder shall be liable
to pay in satisfaction of such execution a greater
sum than shall be equal to the portion of his
shares not then paid up. The 18th section pro-
vides that if any shareholder shall have been
excussed, execution may issue against any former
holder of the shares held by such shareholder for
such amount as he shall have failed to pay in
satisfaction of the execution, not exceeding, how-
ever, the amount which such former holder would
have been liable for if he had been the present
holder of the shares. Then follows this important
proviso which considerably modifies the common
law as already explained : " Provided, also, that in
the case of execution against any former share-
holder, such shareholder shall have been a share-
holder at the time when the contract or engage-
ment for which the judgment, deoree, or order may
have been obtained was entered into, or became a
shareholder during the time such contract or
engagement was unexecuted or unsatisfied, or was
a shareholder at the time of the judgment, decree,
or order being obtained." Thus far the provisions
of the 18th section, as amended by Act No. 11 of
1879, are applicable to all companies, including
banking companies with limited as well as un-
limited liability. But the further provisions of
the section, as so amended, relating to banking
and other companies with limited liability, differ
from those relating to banking companies with
unlimited liability. As to the former, no t
execution, even to the limited extent already
mentioned, can issue against a former share-
holder after the expiration of two years next
after the return of the transfer of the shares
has been made to the Registrar of Deeds. As to
the latter, that is, banking companies with un- ;
limited liability, it is not sufficient that two years
had expired from the time when the share had
been transferred, but the former shareholder xnnst
also have published certain notices in the news-
papers that he had oeased to be a shareholder in
such banking company. The past shareholder in a
banking company with limited liability is, of
course, not liable for more than the unpaid portion
ef his shares. As to shareholders in a banking
oompany with unlimited liability, the last proviso
of the section provides that "every such share-
holder shall, as such former shareholder, be liable
to the same amount as if this Act had never been
passed." The language of this proviso is certainly
most unfortunate, but it dearly could not have
been intended to neutralise everything that had
been enacted immediately before in regard to
banking companies with unlimited liability, which
are the only kind of banking companies to which
that section (before it was amended by the Act of
1879) could possibly refer. Its object was to
make it perfectly clear that, although former
shareholder of such banking companies are allowed
to participate in the benefits conferred by the
section, they shall not on that account be con-
sidered as having been members of a limited
liability company. In regard to debts incurred
and engagements entered into before they oeased
to be shareholders their liability is unlimited, and
not, as in the case of former shareholders of bank-
ing companies with limited liability, limited to the
amount of the unpaid portion of their shares. But
even such debts and engagements former share-
holders are, as I have just pointed out, relieved
from, if in the case of banking companies with
limited liability two years have elapsed since the
return of the transfer of the shares, and if, in the
case of banking companies with unlimited liability,
two years have elapsed since the transfer and
public notice of such transfer has been given. As
to debts and engagements incurred after transfer
no liability attaohes to former shareholders of
banking companies, whether their liability be
limited or unlimited. In this respect such share*
39
holder* are placed upon the same footing as retired
partners who have given due notice by public
advertisement and by special notice to their
customers of their retirement from the partnership.
And in order to prevent any possible breach of
faith with customers of joint-stock banks by giving
them the fullest information as to the concerns of
inch banks, the 16th section of Act No. 19 of 1866
requires every such bank to file annually with the
Registrar of Deeds a copy of the instrument under
which it is constituted, together with a list of the
names of the shareholders up to the 31st December *
preceding. In 1868 the Winding-up Act was
passed. The object of that Act was to provide
efficient machinery for winding up, under the
supervision of the Court, not only companies which
are unable to pay their debts, but also those whioh
the Court may on other grounds deem it to be just
and equitable that they should be wound up. As
regards insolvent joint-stock companies they could,
before the Act, be wound up under the Insolvent
Ordinance, but as the sequestration of the estates
of such companies would involve great difficulties
where there were many shareholders to deal with,
it was deemed advisable to provide a simpler
machinery for winding up such companies or any
partnerships consisting of more than seven
members. The Act is based upon the English Act
of 1862, but omits a great many of its provisions,
especially those relating to the liability of past
shareholders to be placed upon the lists of con-
tributories. This omission was intentional, and
the nature and extent of their liability must there-
fore be sought for in our own common law as
modified by our own statutes. For the purpose of
conducting the proceedings in winding up a com-
pany the Court may appoint one or more liquidators,
and their duties are performed under the imme-
diate control and supervision of the Court. They
have the powers of a curator bonis under the old
law, together with such further powers as under
the Act they may be permitted by the Court to
exercise. On behalf of some of the applicants it
has been contended that, whatever rights creditors
of the Paarl Bank may have against former share-
holders, the liquidators have no business to assist
them in the assertion of those rights. This con-
tention involves the assumption that creditors have
the right, after a company has been ordered to be
wound up, to assert their rights, in their own
miiim, against shareholders, whether past or
present — an assumption whioh is entirely at variance
with the whole scope and object of the Winding-up
Act. It is inconsistent also with the common law,
which, after the appointment of * curator bonis,
takes away the rights of creditors to sue the person
or estate whioh he represents, and throws upon
him the duty of collecting all the aseets, suing for
them when withheld, and distributing them among
the creditors. Bo large were the powers of a curator
bonis that, according to Voet (42, 7, 6), he could,
although representing the estate of the debtor,
also represent the oreditors in an action to recover
articles pledged to such creditors by the debtor
whioh had improperly come into the possession of
third parties, and he might even (Voet, 42, 7, 7)
claim from a creditor who had possession of a
thing pledged delivery of the thing for the
purpose of realisation, reserving of course
to such creditor his right of preference in
respect of the proceeds. In the case of " Liquida-
tors ef Cape Commercial Bank v. Hofmeyr" (2,
Juta, 366), the Court by no means intended to lay
down that the liquidators only represented the
company. A past shareholder had been placed
upon the list of contributories without proof that
the existing shareholders would not be able to
make good the deficiency, and the Court held that
the liquidators should give effect to the trust deed
releasing past shareholders as between them and
the continuing shareholders. It was distinctly
admitted in the judgment that for certain purposes
the liquidators must be taken to represent the
creditors, and one of those purposes is the re-
covery from persons liable to contribute towards
the payment of the debts the amounts owing to
such oreditors. The list of contributories is settled
by the Court upon the recommendation of the
liquidators, and the only question in each case is
whether the person placed upon the list by the
liquidators is bound by law to contribute to the
payment of the debts of the company. In the
present case the liquidators have placed upon the
list the names of the applicants, and they have
made the statement, in their report and by affidavit,
that the shareholders registered as such at the
date of the winding-up will be unable to meet the
full amount ef the deficiency. They have
omitted, however, to state, or to frame an account
shewing, that any of the debts owing by the bank
had been incurred before the applicants' shares
were respectively transferred to the present share-
holders. This emission is, in my opinion, fatal.
A shareholder who would not now be liable as
such to any creditor, in case the bank had never
been placed under the Winding-up Act, cannot be
made liable at the suit of the liquidators. None
of the applicants would have been liable to
oreditors in respect of debts incurred by the bank
after the applicants respectively ceased to be
shareholders, and, in the absence of any account
showing when the debts owing by the bank were
incurred, the applicants are entitled to have their
names removed from the list of contributories.
WEB8TEB V. SOLOMON AND ANOTHER.
On the application of Mr. Bearle, the rule nisi
interdicting the removal or sale of certain
furniture and goods attached to satisfy a judg-
40
ment of the Resident Magistrate of Gape Town,
pending an aotien to be brought by applicant for
reoovery of rent, was made absolute.
IN THE ESTATE OF THE LATE GEORGE E.
ROSS.
Mr. Searle moved for an order requiring the
widow of the deceased to deliver up to the execu-
tor of the estate the deeds of transfer and other
documents in her possession relating to the assets
therein. Mr. Searle informed the Court that Mrs.
Ross had this morning, through her attorney
expressed her willingness to give up the required
documents. Sueh being the case he had merely to
aBk for oosts, which were granted.
GROOM V. THE BECHU AN ALAND EXPLORA-
TION COMPANY.
Sir T. Upingion, QC, with whom was Mr.
Schreiner, applied for an order postponing the
trial of a pending action until such time as the
defendants shall be enabled to procure the attend-
ance of Mr. Hermann, a necessary witness.
Mr. Searle opposed the motion.
The Court made no order with regard to
Hermann, but directed that the evidence of Groom
and White should be taken at the trial, and if
Hermann did not arrive in time for the trial an
order would be then made.
THE LIQUIDATORS OF THE UNION BANK V.
WATSON'S ESTATE.
Mr. Schreiner moved, on behalf of the liqui-
dators, for leave to place on the list of contribu-
tories the heirs of the said estate to the extent
that they had derived benefit therefrom, and for
direction as to service of notice thereof on the
said heirs. It appeared from the statement of
counsel that Mr. Watson had died in 1884, and at
the time of his death he was the registered holder
of 60 shares in the Union Bank. His heirs, who
were ten in number, had each reoeived £4,818 in
the final distribution of the estate, and it was now
asked that they should be placed on the list of
oontributories.
Mr. Searle, who appeared for the heirs, opposed
the motion.
The Court granted a rule nisi calling upon the
heirs to show cause why they should not be plaoed
on the list as oontributories. Copy of the rule to
be served on Messrs. Van Zyl 6 Buissinne, and
to be made returnable on the 16th of May.
PARKER V. HOPKINS.
Mr. Schreiner moved on behalf of the applicant,
a niece of the respondent, for a rule nisi calling
upon the latter to show cause why she should not |
be declared of unsound mind, and incapable of
managing her own affairs.
The Court granted the rule, and appointed Mr.
Castens curator ad litem.
IN THE INSOLVENT ESTATE OF PETER
JOSEPH OATES.
On the application of Mr. Juta, Mr. Henry Flint
East was appointed provisional trustee, with per-
mission to carry on the business of the Crown
Hotel, Claremont, formerly oonduoted by the
insolvent.
SUPREME COURT.
MONDAY, FEBRUARY 16.
[Before the Chief Justioe (Sir J. H. DE
VlLLIERS), Mr. Justice SMITH, and Mr.
Justioe Buchanan.]
MATHEW V. PENTZ AND THE COLONIAL
GOVERNMENT.
Diamond — Right to possession — Action for
recovery.
Mr. Searle and Mr. Graham appeared for the
plaintiff.
Mr. Schreiner and Mr. Jones for the
defendant Pentz, and Mr. Giddy watched the pro-
ceedings on behalf of the Colonial Government,
and intimated that the Government had with-
drawn its claim and merely held the diamond
subject to the decision of the Court in this case.
This was an action brought by Mrs. Mathew,
wife of Alexander Mathew, of Johannesburg,
against the Colonial Government and Nicholas
William Pentz, of Warrenton, for the delivery of a
diamond which it was alleged was the property of
the plaintiff, or, in the alternative, payment of
£2,000, alleged to be its value. The declaration
alleged that about the year 1862 the plaintiff
resided on her father's farm in the division of
Swellendam, where she found a certain stone, of
the nature of which she was then ignorant, and
about 1871 she handed it over to defendant Pentz
for the purpose of making inquiry as to its quality.
In the year 1889 she heard that the stone was a
diamond, and that Pentz had given it te the
Detective Department in Kimberley, whereupon
she made a demand for it.
The plea of the defendant Pentz was to the
effect that about 1870 Bessie Myburgh, now Mrs.
Dreyer, sister of the plaintiff, gave him the stone,
whioh was supposed to be a crystal, as a keepsake ;
that when he was at Warrenton in 1889, an expert
41
in diamonds identified the stone as a diamond, and
the defendant accordingly handed it over to the
Detective Department. He then brought an
action against the department, and last November
the Supreme Court gave judgment in his favour,
awarding him possession of the diamond, but
appointing the Government its bailee, until
security could be given by the plaintiff (Mrs.
Hathew) for the eosts of the present action.
The Chief Justice : Has Mrs. Mathew seen the
diamond?
Mr. Searle : I understand a sight ef it has been
refused.
Then how can she recognise it ?— There is other
evidence.
Then all yon can say is that you had a diamond ?
—Yes, we say we handed a large crystal to Pentz.
Mr. Giddy here remarked that the Colonial
Government made no claim for the diamond, and
had withdrawn from the proceedings, except so
far as it was concerned as bailee of the stone.
Thomas Woodville Harker, chief clerk of the
Detective Department, Kimberley, called by Mr.
Bearle, stated that in October, 1889, Pentz came
to the office with a diamond which he told witness
he had received about thirteen years before from
Kiss Bessie Myburgh, at Heidelberg, and that
Miss Bessie Myburgh was now a Mrs. Dryer.
Pentz further stated that he did not know it was a
diamond, and had only kept it as a keepsake,
together with a small peacock's feather, and a
letter which he had received at the same time.
Witness saw M**. Dreyer early in November at
Bredasdorp, and in consequence of what she told
him, Mr. Pentz was brought to that place. They
saw Mrs. Dreyer, who said that she had never seen
the stone before. Pentz tried to refresh her
memory and mentioned the feather and the letter,
which letter he said he had torn up. Mrs. Dreyer
said she did not remember either the stone or the
letter. Subsequently a telegram was received
from Mrs. Mathew claiming the diamond as hers.
The Chief Justice : Has the plaintiff seen the
stone?
Witness : It was not placed singly before her.
You did show it to her ?— Oh yes 1 I put it in a
box with a number of imitation diamonds.
And could she recognise it as her diamond ?—
No, she could not identify it.
Cross-examined by Mr. Sohreiner : The diamond
was an 87-carat one, and not an 18-earat stone,
at alluded to by Mrs. Mathew in a telegram to
the Detective Department, in which she also
stated that she was coming to claim it. There
were paragraphs in several newspapers concerning
the case before it came on, and in the Johannes-
burg Star was an intimation, soon after Pentz
gave the stone to the department, that it was in
their custody.
You showed Mrs. Mathew the diamond amongst
Q
others and she could not recognise it? — She did
not recognise it.
Have you anything— any diamonds — which you
could place side by side with the stone in dispute,
in order to test her knowledge of it ?— I have not ;
but there may be spurious diamonds in the Attor-
ney-General's offioe. (Great laughter.) Left there
as ourios, though. (Renewed laughter.)
Didn't you find from the different people you
made inquiries of that Mr. Pentz bore an honest
reputation ?
Mr. Searle : I object to that ; I don't know
what it means.
Mr. Sohreiner : Don't yen know what an honest
reputation is ? (Laughter.)
The Chief Justioe overruled the question as
irrelevant, and this concluded the evidence of the
witness.
Mr. Tilman Boux Myburgh, Meltkamer, Bredas-
dorp, brother of Mrs. Dreyer and Mrs. Mathew,
referred to the visit of Mr. Harker to the farm
with the stone in dispate. Witness could net at
first believe it was a diamond.
Mr. Searle : Had you seen the stone before ?
Witness : I saw such a stone in my father's desk
years ago.
Is it the same stone ? — The same shape, but it
is a little brighter than when I saw it.
Do you remember the stone for many years ? — I
knew it was in the desk for a long time.
Was it considered to be a diamond ? — I thought
it was only a crystal or white stone. There was
also a green stone in the desk of a fibrous nature.
Cress-examined by Mr. Sohreiner : I believe it
is the same stone as was in my father's desk.
You remember that there was a large find of
crystals on an adjoining farm to your father's ? —
Yes ; but none were so big as this.
Mr. Searle then proposed to show witness the
diamond, which was done, the stone being care-
fully kept from the sight of Mrs. Mathew.
Mr. Searle : Is that the stone you saw Mr.
Harker had with him ?— I believe it is the stone
from its shape and a little mark on it.
Had the stone in your father's desk any mark
upon it?— There was a little flaw in it, and,
judging from the shape, I should say that is the
same.
Mrs. Hester Hannah Mathew, born in 1862,
stated that she married in 1871.
Mr. Searle : Do you remember in November,
1889, seeing a paragraph in the Star ?
Witness : My husband read it to me.
The Chief Justioe : It is headed " Another
South African Romance."
Witness (continuing) said she made an affidavit
in consequence of what she heard, and afterwards
went to Kimberley. She pioked up the stone when
she was between eight and ten years of age. She
found it near the cattle kraal, on their farm near
42
Heidelberg, and took it to her father, who looked
it up in his desk, along with a piece of asbestos.
It waa always known as "Heesie haar Kristal."
Witness was at school at Durbanville, and at Ron-
debosch. Between 1867 and 1869 she gave Pentz
the stone. He was postmaster at Heidelberg.
How did you get it to give him ? — I asked my
father for it, as Pentz had promised to have it
examined. They had often talked of the stone.
The Chief Justice here pointed ont that there
was some discrepancy in the plaintiff's dates.
Mr. Searle said she had only arrived in town
this morning from Johannesburg, but considering
the length of time that had elapsed she was as
near the date as possible.
Witness (continuing) said she met Mr. Mathew
as she was going home from Rondebosch in 1869,
and they were engaged a year later. Her father
died in 1877. Since her marriage she had lived at
Bredasdorp, Beaufort West, Malmani, and
Johannesburg.
Mr. Searle : Have you ever seen Pentz sinoe ?
Witness: I last saw him during the Basuto
war. I came down to Heidelberg, where Pentz
had married.
Did you ever speak to Pentz about the stone
afterwards ? — No, never. I olean forgot all about
it until I saw the news in the Star.
Were the circumstances recalled as soon as you
saw it in the Star ? — At once.
Can you desoribe us the stone. How large was
it ?— I cannot describe anything very accurately,
having parted with it so long ago.
The Chief Justice : Is it as long as the joint of
your thumb ?
Witness : Something like that, but I could not
say definitely ; besides, I am colour blind.
Mr. Searle : Was it square or round ?
Witness : It was of irregular shape.
What colour was it ? — It was white, but not
pure white.
Would you know the stone now if you saw it ? —
I might recognise it, but I would not be positive.
Look at this crystal now, and tell us if it is the
stone.— The stone was then handed to the plaintiff,
who at once exclaimed, " Oh yes, that is it."
You think that is it ?— I think it is it. It is a
difficult stone to describe.
Cross-examined by Mr. Schreiner: Yon see the
stone now ?
Witness: Yes.
Mr. Harker shewed you a lot of stones, didn't
he, in an oblong box ? — Yes.
Was that stone in your hand among them ? —
I don't know.
Did you look among the stones ? — I didn't take
pnrficnlnr notice.
Y« u k» ew one of them was the diamend yon
laid claim to? — No, Mr. Barker didn't tell me it
was there.
Didri't he ask you to pick out the stone ? — No,
he didn't. He asked me if I could identify it, and
I said I could not undertake to do so, and then he
said he would show me a few stones, and he did.
Did he not ask you whether the diamond was
amongst them ?— No.
You never were on friendly terms with Pentz ?
—No.
You never wrote him affectionate letters ?— I
should think not.
Mr. Justice Smith elicited from the witness that
she never mentioned the matter to her husband,
because it never occurred to her memory at all,
and she was a bad hand at remembering dates.
Mrs. Elizabeth Catherine Dreyer, born in 1866,
and married in 1877, six weeks after her father's
death, who was also a witness in the recent action
by Pentz against the Government, said the stone
was generally spoken of as " Heesie haar KristaL"
She considered the stone produced as the one
which her father kept in his desk. It was the
same stone that was produced in the recent case.
Pentz alleged that she (witness) gave it to him as
a keepsake, together with a peacock's feather and
a letter, but he destroyed the letter only a few
months before he went to Warrenton. Witness
was confident she never gave him anything, and
she denied that she wrote a letter (produced).
Cross-examined : Witness was taken by Mr.
Schreiner over a great part of her former evidence,
and adhered in the main to her statement. She
was never too fond of Pentz, who about 1870 was
engaged to Miss Botha.
Mr. Schreiner : About that time, when Pentz
was twenty years old, he was considered a gay
young fellow ?
Witness : I don't know.
Didn't you know that of him ?— No.
Was he a good young man, who still manages to
live ? — Witness made no reply.
The Chief Justice : What do you mean by "a
gay young man " ?
Mr* Justice Smith : Perhaps a gay Lethario.
(Laughter.)
Mr. Schreiner : I de not mean anything wrong.
Mr. Justioe Buchanan : You mean a ladies'
man ? (Renewed laughter.)
Mr. Schreiner : He was a great admirer of the
ladies. (Laughter.) Was there, Mrs. Dreyer,
nothing of sweethearts' innocent little endearments
between you and Mr. Pentz ?
Witness : Nothing of the kind.
How is it, then, that he comes to have couple of
photographs of you ? — He might have got them
somewhere else.
There were plenty of your photographs in the
district, weren't there?
Witness : Yes. (Great laughter.)
Mr. Schreiner : Aid Mr. Pentz seems to have
got his share. (Renewed laughter),
I 1
43
The Chief Justice : They are hardly photographs
ihe would have sent to her lover. They do not do
her justice at all. (More laughter).
Mr. Searle : Were they taken by a local artist ?
Witness : I think at Heidelberg.
Mr. Andreas Johannes Dreyer, husband of Mrs.
Dreyer, detailed the conversation which took place
between his wife and Mr. Pentz at Bredaedorp,
when Mr. Harker was also present. His wife
denied having ever given Pentz anything, and the
latter asked her to admit that she had given him
the atone, and he would give her £100.
Cross-examined : He distinctly heard Pentz
offer the money.
Mrs. Johanna Jacoba Myburgh, aged seventy-
one, widow of Tilman Boux Myburgh, of Heidel-
berg, stated that her daughter Hessie was about
ten years old when she brought a stone into the
house which she said she had found outside the
house. There was never another stone so large
found on the {arm. The stone produced was very
like it. Her opinion was confirmed by the fact of
a little scratch she noticed on it, but it was twenty
years ainoe she saw it.
Cross-examined by Mr. Scbreiner : Was Pentz
engaged to your daughter Bessie ?
Witness : No, I think not.
Tour daughter was an attractive girl, and there
were plenty of young fellows?— Oh, yes; they
came so many. (Laughter.)
And Pentz was a fine, well-set-up young fellow ?
— He came there like a friend, and never said
anything specially.
Never asked that he might be engaged to her ? —
Never. Continuing, witness said she heard about
1870 that an adjoining farm was supposed to be
diamondiferous.
Mr. Schreiner here quoted a paragraph from the
George Advertiser of November, 1870, from which
it appeared that en ground adjoining the
Myburghs' farm a small diamond about the size of
a pin's head had been picked up. The paragraph
concluded with the remark that if gold and
diamonds were found in the country things would
begin to look cheerful. (Laughter.)
This closed the case for the plaintiff.
For the def enoe,
Mr. Nicholas Willem Pentz, defendant, stated
that he was plaintiff in the late action against
the Detective Department to recover the diamond,.
He knew the Myburghs from youth. In 1868 he
was at school at the Paarl, thence he went to
Heidelberg, and subsequently became the post-
master there. He knew Miss Bessie Myburgh
(Mrs. Dreyer) well. He never saw the stone ajb
the farm, and he never asked for it. Miss
Myburgh gave him the letter (produced), together
with the diamond and peacock feather as keep-
sakes. After knocking about the country for
tome years witneas got to Warrenton, when on the
advice of ethers he gave the stene to the
detectives. At the interview with Mrs. Pentz he
stated that he had destroyed the letter, but
subsequently he found it. He never offered ^lrs.
Dreyer £100 if she would admit that she had
given it. His wife found the letter, and she
advised him so by telegraph whilst he was at
Bredasdorp. The telegram went to Kimberley.
Some time after Miss Bessie Myburgh gave him
the store he reminded her of it, but she made no
comment upon it. The photographs produoed were
given him by her.
How old were you when you went to Heidel-
berg ?— About twenty.
AnH you knew a good many young ladies in the
place ? — Oh, yes ; many.
Cross-examined by Mr. Searle : On the ?th of
December last he made an affidavit to the effect
that he had destroyed the letter.
Mr. Searle: Now that telegram is dated
November 24 ?
Witness : I didn't read the telegram until after
I had made my affidavit. I thought my wife was
alluding to some other Betty.
CiosB-examination continued : He oould not tell
why he did not throw the stone and feather
away as well (as he supposed he had done) as the
letter. He had often kissed Miss Betty, and
there was certainly love-making between them.
He had kissed her — (laughter)— and oould not
account for having said at the last trial that there
was no love-making, beyond saying that his evidence
had been misunderstood.
Mr. Searle : What is your idea of love-making ?
Isn't kissing part of it ?
Witness: I should think so. Continuing, he
said he could not produce any other letters from
Miss Myburgh. He oould not give any reasons for
the presents, because he was not immediately leav-
ing Heidelberg. Never remembered Miss Hester
Myburgh asking him to see what the stone was.
Re-examined : He had since found a letter from
Miss Munnik in a cash-box wherein was the letter
of Miss Bessie Myburgh.
The Chief Justioe said he supposed the purpose
of putting Miss Munnik's letter in was to show
that there was no resemblance between the hand-
writing of the two letters. After examining them
he said that there certainly was no resemblance.
Mr. Harker (re-oalled) stated that, in his pre-
sence, the defendant in a friendly way offered
£200 to Mrs. Dreyer, but she said she would not
take a false oath for £1,000. The offer was not a
serious one, and witness did not look upon it as a
bribe. When he showed Mrs. Mathew a box of
diamonds, with the one in dispute amongst
them, she pleaded colour blindness and defective
memory. She picked up several, and had the
actual diamond in her hand, as she had others, but
she did not actually identify it.
44
Mrs. Dolina Berthrina Pentz (born Botha), aged
83, wife of the defendant, said that before her
marriage she frequently saw defendant kiss Miss
Betty Mybnrgh. After witness was married he
showed her the diamond, which was always kept
in a cashbox. After her husband had gone to
Bredasdorp she found in the bottom of another
cashbox the letter from Miss Myburgh, containing
the feather. Very often their child used to play
with the stone. They knew nothing of its value.
Cross-examined : Bhe had never been asked to
search for Miss My burgh's letter and sent the
telegram on her own responsibility. Bhe did not
send the letter for two months after telegraphing.
This ooncluded the evidence.
SUPREME COURT.
TUESDAY, FEBRUARY 17.
[Before the Chief Justice (Sir J. H. DE
VlLLIERB), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
mathew*y. fentz -and the colonial
government.
[Second Day.]
Mr. Searle and Mr. Graham for the plaintiff.
Mr. Schreiner and Mr. Jones for the defendant.
Mr. Giddy watched the proceedings on behalf of
the Colonial Government.
Mr. Searle, in opening his argument, remarked
that there had been very great conflict of testi-
mony. There were, however, two points which it
would be the duty of the Court to consider: (1)
Was the diamond claimed by plaintiff the crystal
found on My burgh's farm twenty years ago ? And
(2) if that were so, whose story was to be believed
as to the way in which the defendant had become
possessed of it ?
Mr. Justice Smith : I suppose, Mr. Searle, you
base your contention on the fact that the diamond
was found on the My burghs' farm?
Mr. Searle : Yes ; all the witnesses agree on
that point.
Mr. Justioe Smith : Because it appears to me to
be inconceivable how a man like Pentz could have
kept a diamond in his possession for so long a time
without ascertaining its value*
Mr. Searle, continuing his argument, maintained
that the diamond had been sufficiently identified,
considering the long period that had elapsed since
many of the witnesses had seen it. He further
contended that Mrs. Mathew's account of how Bhe
had given the stone to Pentz was muoh more
worthy of credence than the aooount given by the
defendant.
Mr. Schreiner put in the order of Court in the
case of Pentz v. The Attorney-General, tried in
November last, and remarked that the Court would
have to take into consideration, in weighing the
evidence given in this case, the action of the
Colonial Government with regard to the defendant,
which virtually amounted to a recognition of the
bona fides of his claim. The onus was on the
plaintiff of proving that she had a better claim to
the diamond than Mr. Pentz, and this claim she
had wholly failed to establish. Counsel then
commented upon the ease with which the plaintiff
appeared to recognise the diamond when it was
shown to her in the witness-box, although she had
failed to identify it a short time before when it
had been shown to her by Mr. Harker. Con-
tinuing, Mr. Schreiner remarked that, no doubt,
both the plaintiff and her sister had picked up
many crystals on their father's farm from time to
time, and when she heard ef the paragraph in the
Star, and the wish being father to the thought,
she advanced a claim to the diamond, which she
had failed to establish.
The Chief Justice remarked that the first large
diamond had been found at Hope Town.
Mr. Justice Buchanan: A voracious ostrich
might have swallowed the diamond.
Mr. Schreiner : I do not remember ostriches so
early as 1870 in the district in which the parties
lived, but it was a well-known fact that travellers
coming from the interior frequently brought down
pretty stones with them. Had the ostrich scare,
or rather mania, or boom —(laughter)— been on at
that time it might offer a possible explanation.
Mr. Justice Buchanan : It would have been
difficult for an ostrich born in the Colony to have
found a diamond on the banks of the Orange
River.
Counsel then remarked that the apparent dis-
crepancy between the defendant's testimony in the
previous case and in the present with regard to his
love-making oould be easily explained. Mr. Pentz
had evidently peculiar views on the subject of
love-making. He perhaps thought that it involved
serious intention, and he appeared to imagine that
where there had been no affection there oould be
no love-making. There was abundant evidence
that he had kissed Miss Myburgh, but kissing to
him appeared to be like shaking hands to other
people. His love may have been of a higher
standard, but he ought not to be disbelieved
because he entertained rude and bucolic views of
what was generally regarded as love-making.
With regard to the discrepancies in Miss Myburgh 's
letter, counsel submitted that when young ladies
wrote love letters they were not very particular as
to the " context." The alteration was in the same
handwriting as the letter.
The Chief Justice z I should have thought there
would have also been a postscript.— Counsel^ in
45
conclusion maintained that the plaintiff had failed
to establish her case and that the defendant was
entitled to a verdict.
The Chief Justice, without calling upon Mr.
Searle to reply, delivered the following judgment :
In the previous action Drought by Pentz against
the Government, the only question that arose was
as to which of the two had the better right to the
stone. Pentz had possession, and inasmuch as the
Government did not prosecute in that case, and
did not profess its willingness to prosecute, the
Court held that as between him and the Govern-
ment he was entitled to the stone. The question
which we have now to decide is whether the plaintiff,
Mrs. Mathew, is entitled to the stone as against
Pents. I quite agree with Mr. Sohreiner that we
are bound to take it that the Government had no
ground to prosecute Pentz at all, and that he came
into possession of the stone in a perfectly innocent
manner. The difficulties which are involved in
this case I think are greatly diminished by the fact
that it is common cause between plaintiff and
defendant that this diamond was not in the year
1890 found at Kimberley or the river diggings, but
that it had been in the possession of the defendant
for a leng time before. It is oommon cause also
that this diamond, whether it originally came
from the Diamond-fields or not, did somewhere
about 1870 come from the farm at Heidelberg.
It is quite possible that this stone, like so many
other diamonds found in the Colony, might have
been brought into the Colony by some traveller
or trader, who did not knew its value, and who
simply threw it away, and that in this way
it was found by someone on the farm. I am
quite satisfied that Mrs. Mathew, the plaintiff
in this suit, did give Pentz the crystal, or pebble
which she thought to be a crystal, and that she did
so being anxious to disoover whether it was a
diamond or not. As soon as her husband read the
paragraph in the Star, she, without delay, through
her husband, telegraphed to the Kimberley
Detective Department claiming the diamond.
How unless there had been something of the kind
between her and Pentz, I am satisfied she would
not on the spur of the moment have induced her
husband to send the telegram. There is no doubt
a mistake in the telegram in which she says it was
an 18-carat diamond, but she was misled by the
paragraph in the Star, which spoke of it as such.
It would have been quite impossible for her to
have remembered the exact size and weight of
the diamond, for the last time she saw it was
twenty years ago. Therefore he did not lay stress
on the mistake between 18 carats and 87 carats.
Now, if the defendant had admitted in this oase
that he had received some pebble from Mrs.
Mathew, but that this stene, which ultimately
proved to be a diamond, was not the one he
Motived, I should ihave attached. greater weight
to his evidence than I do ; but being satisfied as I
am that he did get the pebble from Mrs. Mathew,
the only question is whether the diamond is the
diamond she handed to him. In order to decide
between the two, I think we should look at some
of the circumstances of the case whioh have no
direct bearing on the issue, but may materially
assist the Court in arriving at a conclusion. The
defendant Pentz relies on the letter whioh he alleges
he received from Mrs. Dreyer. As far as I can form
any opinion on the case, I believe the letter was
never written by Mrs. Dreyer at all. The hand-
writing does not correspond with her true hand-
writing. In the affidavit the defendant made on
the 7th December, he does not at all refer to a
telegram he had already received from his wife,
stating that the letter had been found. It is too
late now to ask for a postponement of the ease
on a question of this kind, and even if there had
been no discrepancy, it would not have made any
material difference to my judgment, but in my
opinion the telegram was received before he made
this affidavit ; but when he received the telegram
from his wife he was satisfied in his own mind
that it was some other letter referred to. I
believe it to be utterly incredible that this large
stone would have been enclosed in this flimsy
envelope given to Pentz. His account is that the
letter was given him by Mrs. Dreyer herself. She
totally denies it, and 1 do not think it is a letter,
considering the degree of intimacy between them,
which a young girl of fifteen years of age would
have written to him at all. But supposing she
did write it, on the face of it ii shows marks of hav-
ing been altered, and the words " aid stone " having
been written in afterwards. The ink is also
different. I think these circumstances are suffi-
cient to discredit the whole of the evidenoe given
by the defendant. We are now reduced to this
issue to decide between two alternatives. Was
the diamond given to Pentz by Mrs. Dreyer as a
keepsake, or was it given him by Mrs. Mathews
for the purpose of discovering whether it was a
diamond or not ? I am perfectly satisfied that the
most probable version is that given by Mrs.
Mathew. I have many reasons to believe that
this is the more truthful, and under these cir-
cumstances I am of opinion she is entitled to the
diamond. Even supposing the Court is mistaken
in supposing that Mrs. Mathews did give the
diamond, and supposing it to be true that the
defendant did get the diamond from Mrs. Dreyer,
then it is some oonsolation to think that no great
injustice is done in oase the Court has gone wrong
on the facts; because, as a man of honour at
all events, the defendant ought, if his
version be true, to have returned the diamond
to Mrs. Dreyer, and not to have kept it. What-
ever may be the law, in all honour the defendant
ought to have returned it to Mrs* Dreyer, but I
u
do not believe hii version is true. I believe it
came from Mrs. Mathew, and ai between the two,
she is entitled to it, with oosU.
Mr. Jastioe Smith said he concurred in the
judgment except as to that part of it whioh
referred to the letter. He believed that that
letter had been written by Miss Myborgh.
Mr. Jastioe Buchanan remarked that his great
difficulty had been to oome to the conclusion that
the stone, whioh was river-washed, had ever been
picked np en the farm. He ooncurred in the
judgment of the Chief Justice.
B0BKBT80N V. BOBEBTSON.
Mr. Graham, on behalf of the plaintiff, obtained
leave to take the evidence, on commission, of some
of the crew of the Conway Castle, whioh vessel
was advertised to sail at two pan. te-day Mr.
Casterns was appointed commissioner.
IN BB OHABLE8 AD8HADE, (AN ALLBOBD
LUNATIC.)
Mr. Jnta applied for the appointment of Mr.
Henry Adshade as curator of the person and
property ef his father, Mr. Charles Adshade.
The Court, after having heard the evidence of
Mr. Henry Adshade and the affidavits of the
Resident Magistrate and District Snrgeon of
Swellendam, declared Mr. Charles Adshade to be
a person of unsound mind and incapable of
managing his own affairs, and appointed his son,
Mz. Henry Adshade, curator of his person and
property.
GBOOM AND WHITE Y. THE BBC HU AN ALAND
EXPLORATION COMPANY, LIMITED.
Contract — Breach — Damages — Prospecting
rights in territory of independent chief.
Mr. Bearle and Mr. Bheil appeared for the
plaintiffs.
Sir Thomas Upington, Q.C., and Mr. Schreiner
for the defendant company.
This was an action instituted by the plaintiffs
against the Bechuanaland Exploration Company
(Limited), for breach of contract, damages being
laid at £1,000. It appeared from the opening
statement of counsel that the parties entered into
a written agreement at Cape Town on the 27th
Deoember, 1889, under the terms of which the
plaintiffs were to have liberty to prospect in all
such portions of the Bamangwato (Khama's)
oountry as were open to the exploration of the
oompany'e paid employes. At the date of the
agreement the defendants held certain rights in
and over the said oeuntry in inspect of prospecting,
and otherwise by written concession from Khama.
Early in 1890 the plaintiffs fitted out and prepared
themselves f er a prospecting expedition under the
agreement, and arrived in Palapye towards the
end of February, 1890. In May, 1890, the plain-
tiffs undertook oertain prospecting operations in
Khama's oountry under the agreement, but were
prevented by the company's agent from continuing
the same, on the grounds that Khama objected
to their prospecting in any part of his oountry
except in the region of the Crocodile River. As
no defined portions of the Bamangwato country
had been specified in the agreement, the plaintiffs
declined to be limited in their operations to the
neighbourhood of the Crocodile River, and con-
sidering that the action of the company's agent in
so limiting them amounted to a breach of contract,
instituted the present action.
Charles Groom, called by Mr. Searle, stated that
he had lived in England till November, 1889, when
he came to the Colony with Mr. White for the
purpose of prospecting for gold in Khama's
country. Before he left England he had had
several interviews with Mr. Weatherley, the
secretary of the defendant company, who referred
him to Major Johnson, the company's manager
out here. A few days after his arrival in Cape
Town he saw Major Johnson, who informed him
that he had sent in bis resignation and that it had
been aocepted. He afterwards introduced him to
Mr. Goldschmidt, who, on behalf of the company,
entered into the agreement with himself and Mr.
White on the 27th Deoember, 1889. On the
following day we left for KimberLey, in which
place we remained six days. On the 25th
February we arrived in Palapye and reported
ourselves to Mr. Heany, the superintendent of the
company. We spoke to Mr. Heany about having
the agreement ratified by Khama, but he said be
was going away for about five days and on his
return he would give the matter his attention. On
his return he informed us that he had resigned,
but that Messrs. Moseathal and Stephani would
treat with us. Messrs. Mosenthal and Stephani
subsequently told us that we oould not ge on our
prospecting tour just at present, as Khama would
not permit us. On the 17th April we were told
that we oould start, as Khama had given his
permission. We left Palapye on the 1st May, and
about 40 miles from that town we found very
good indications, and began to prospect. We
were, however, prevented by a letter from Mr.
Harman, telling us that Khama would not have
us there, and that we must go to the Crocodile
River. Witness further stated that he and Mr.
White then went on about 14 miles, and again
met with good indications of gold, but they were
alio prevented from working at this latter spot.
4t
The plaintiff s then returned to Palapye, and they
were of opinion that there was no use in going to
the Crocodile River, they had received snch bad
account* of that locality from other prospectors.
They arrived in Oape Town on the 19th August,
and commenced proceedings against the company.
Cross-examined by Sir T. Upingten, Q.C. : The
expenses charges were those incurred between the
ttth December, 1889, and 19th August, 1890 The
wagon, donkeys, and harness were bought from a
European in Kimberley, who was paid in cash.
He did not knew the man's name. He and Mr.
White gave up prospecting because Mr. Harman
would not allow them to continue. The attitude
of Khama did not affect them further than it
concerned the company.
Re-examined: Mr. Harman did not complain
of any breach of faith on their part. He con-
sidered the £80 a month claimed for himself and
Mr. White very moderate indeed.
Mr. Edward White corroborated the evidence of
the last witness, — Cross-examined by Sir T.
Upington, Q.O. : He had experience in gold
fwfatHig and prospecting in Marico, Klerksderp,
and Johannesburg. Marico had not turned out
well, but he had nothing to do with that They
" panned " at the first place they stopped at but
found no gold, and the second place six reefs were
plainly visible. They did not pan as they had ne
time, but he had brought down a specimen of
quartz in which gold could be seen with the aid of
a glass. He was not the only man in the country
who understood prospecting. He thought the
question a childish one, and he might as well ask
the learned counsel if he were the only " lawyer "
in Cape Town. The money to defray the
expenses of the expedition had been found by
Mr. Groom. The climate of Palapye did not agree
with him.
In answer to the Court, the witness stated that
the reefs at the " second spot" were four or five
feet wide. He would not consider the result
obtained from crushing surface quartz a true test
of the quality of the reef lower down.
Groom (recalled) stated that in his opinion
was nothing to prevent the paid employe's of
the company from working at the place which
they (plaintiffs) had selected.
The correspondence having been put in, the
further hearing of the case was posponed until
SUPREME COURT.
WEDNESDAY, FEBRUARY 18.
[Before the Chief Justice (Sir J. H. DE VILLIERS),
Mr. Justice Smith, and Mr. Justice
BUCHAVAN.]
CLABIDOK Y. KELLAWAT.
Lease. Hire and Purchase system — Cancel-
lation of agreement owing to failure of
monthly payments— Tacit renewal of lease
Sir T. Upington, Q.C., and Mr. Juta for the
plaintiff.
Mr. Sohreiner and Mr. Maskew for the defendant.
This was an action instituted by the plaintiff,
the owner of Claridge's Hotel, against the defen-
dant and his wife to recover certain furniture hired
to the defendants, and £60 damages for non-
delivery of the same. It appeared from the
opening statement of counsel that on November
80, 1888, an agreement was entered into by plaintiff
and Mrs. K ell away, assisted by her husband, upon
the hire and purchase principle, under which the
hirer agreed to pay £100 on December 1, 1888, £60
•n the 1st September, 1889, £60 on the 1st March,
1890, and £10 per month from December 1, 1888,
for the rent of the furniture. In case the hirer
did not perform his part of the agreement, the
owner might at onoe terminate the hire. The
defendant might, however, purchase the furniture
for £688. The monthly payments were made
until October, 1890, when they ceased, and plain-
tiffs agents thereupon cancelled the agreement,
and demanded possession of the furniture. The
defendant alleged that the payments were from
time to time deferred with the knowledge of the
plaintiff, and that the Ootober payment was so
deferred with plaintiffs consent.
Mr. Justice Smith : Do you contend, Mr* Juta,
that if payment was made on Ootober 2, you could
have taken possession of the place, and all money
paid would have been lest ?
Mr. Juta: Strictly speaking it is so. These
agreements do appear as a hardship on one side,
but they are universally aocepted, and there are
advantages on both sides. The defendants in the
present case pleaded further that they offered
£2*7, the balance of the purchase price of the
furniture, after deducting the amounts previously
paid, but this was refused.
Mr. Thomas Herbert Hasell, partner in the firm
of Steer & Co., plaintiff's agents, examined by Mr.
Juta, stated that the first three instalments under
the agreement had been paid by defendant. The
rent, £10 a month, had not befn paid regularly j
48
witness had frequently to send for it, and had
often told defendant that if he were not more
regular in his payments he would fan the risk of
the agreement being cancelled. The agreement
had been entered into with Mrs. Kellaway, as the
defendant said that if he entered into it his
position as caretaker of the Houses of Parliament
might be affected. Witness sent several times for
the rent in October. He knew that Kellaway was
in finanoial difficulties. The furniture had been
attached in October under a judgment of the
Resident Magistrate's Court. On the 28th October
he gave defendant notice of the cancellation of the
agreement. On the same day a meeting of
Kellaway 's creditors was held. He attended the
meeting, and refused an offer of the balance due
on the furniture. After the meeting Mr Kellaway
and his brother-in-law (Mr. Jex) called to see him,
and offered him the October rent, which he refused,
telling them that the agreement had been ean-
oelled. The defendant then said, " Surely you are
not going to exact those rights." Witness replied
that he was aofcing under legal advioe, though
contrary to his own sense of justice, but he would
see what he could do with his principal (Mr.
Glaridge).
Cross-examined by Mr. Sohreiner : He could not
fix any date upen which the warning of probable
cancellation was given. Witness consented to look
after defendant's interests in so far that he was
net humbugged. The agreement for the lease of
the premises was entered into concurrently with
the hire and purchase contract. The first payment of
£10 per month was not made until January 8 instead
of January 1st. Witness was of opinion that under
both contracts the payments should be on one day,
but it might have been implied that they ran
concurrently. Defendant had paid up to the 81st
of August. When defendant made the verbal
contract witness believed he had the money in his
pocket. Witness said that if Claridge acted on
his advise the contract would be reinstated.
Mr. Wahl, clerk to Steer & Co., corroborated
Mr. Hazell's evidence as to demanding the rent
from defendant in October.
Mr. Kellaway, oalled by Mr. Sohreiner, stated
that the lease was executed on the 80th November,
1888, and the first payment was made on the 8rd
December. Mr. Hazell gave him to understand
that as long as he paid £40 a month he would be
all right, and that he (Hazell) would look after
his interests. Mr. Hazell never told him there
was danger of the lease being oanoelled ; £420 had
been paid under the agreement. Witness further
stated that he was ready to pay the balance
Cross-examined : At times Hazell told him to
be earlier in his payments. He would swear that
Hazell never told him he ran the risk of having
the agreement cancelled.
}lr» Bonnes (accountant) stated that he made an
offer by letter to Mi. Villet, of Steer 6 Co., to pay
the balance due on the furniture.
Mr. Juta then proceeded to argue that under
the terms of the agreement there had been a
forfeiture, and that the plaintiff was within his
rights in cancelling the agreement.
Mr. Schreiner oentended that there had been no
breach of the agreement, and that the plaintiff
was practically out of Court.
The Chief Justice in giving judgment, said the
whole question depended upon whether on the
28th of October the lease of hiring had or had not
expired. In his opinion it had net expired when
the defendant gave notice that he would pay the
balance of the purchase price on that day. It was
a question of fact whether there was a tacit
renewal ef the lease during the month of
October. For twenty-eight days the defendant
was allowed to occupy the premises, and he (the
Chief Justice) was satisfied that on the 28th
Ootober the plaintiff had debarred himself by his
own acts from insisting on the defendant giving
up the furniture, and he was bound to allow him
time to the end of the month before he could
claim it. The hire purchase had net expired, and
defendant had the right under the 9th clause to
exercise his option of purchase. It was dear the
defendant was entitled to the judgment of the
Court. There was some difficulty in regard to the
form of judgment, there being no claim in recon-
vention, and the defendant still tendering the
balance ef the purchase price. If Mr. Juta would
accept judgment for the amount tendered that
would end the difficulty, but plaintiff would not be
entitled to costs. Judgment would be for the
plaintiff for the amount tendered, but plaintiff to
pay costs. They had also to protect the interests
of the plaintiff, and under the judgment the
furniture was to remain his property until the
balanoe, less the taxed costs, had been paid.
THORNE AND STUTTAFOBD V. MCNALLT.
Contract — Agreement with employee — Con-
struction — " Absent from whatever cause."
Mr. Sohreiner for the appellants.
Sir T. Upington for the respondent.
This was an appeal from a decision of the
Resident Magistrate of Cape Town, in a ease in
which the respondent (the plaintiff in the Court
below) had sued Messrs. Thome & Stuttaford
for £1 10s., an amount deducted from her wages
in consequence of her absence through illness.
The Resident Magistrate held that the plaintiff
had not " absented " herself within the meaning ef
her agreement with defendants, and gave judg-
ment for the plaintiff with ooste. From this
decision the defendants now appealed. Mr.
49
Schreiner, in supporting the appeal, contended
that both under the terms of the agreement and
by the common law (Voet, 19, 2, 27) the appellants
were justified in deducting an amount of the
respondent's salary proportionate to the time
during which she had been absent. The matter
in dispute was small, but this was merely a test
case, and waa one of great importance to large
employers of labeur.
Sir T. Upington, Q.C., for the respondent, sub-
mitted that there was practically no difference
between the common law of England and the
common law of this country with regard to the
abtenoe of servants through illness, and contended
that the passage cited from Veet was in his
fsrour. The Magistrate had put a reasonable
constructien upon the clause of the agreement
referring to absence, which meant voluntary or
wilful absence and not absence through ill-health.
Counsel, in support of his contention referred to
the case of " Cuckson v. Stones " (1, B. and EL,
248), and "prayed that the appeal might be dis-
missed with costs.
The Chief Justice in giving judgment, re-
marked that the decision of the Court would have
to depend upon the construction of the clause of
the agreement referring to absence. The clause
said from M whatever cause," and although he
would like to be able to construe that clause as
the Magistrate had, he did not see hew it was
possible. The Magistrate held that the words
" absent herself " applied only to cases in which
the respondont had voluntarily absented herself
and not to cases in which she was unable to attend
through illness. It had not been proved that she
was physically incapable of going te business ; in
fast, she had absented herself. The appeal must
be allowed, and the judgment of the Court below
reversed. No order would be made as to costs.
SUPREME COURT.
THURSDAY, FEBRUARY 19.
[Before the Chief Justice (Sir J. H. DE VlLLlEBS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
admission.
On the application of Mr. Juta, Mr. William
Alfred Tindal was admitted to practise as an
attomey-at-law and notary public.
EXECUTORS OF LOTNE6 V. COCHRANE.
Mr. Jenes, on behalf of the executors, applied
for provisional judgment on a promissory note
for £26.
Mr. Searle, for the respondent, prayed for a
stay of execution, and offered to pay £4 a month.
The note on being put in was feund to be
unstamped, and a penalty of £1 was inflicted.
Provisional sentence was granted, subject to the
payment of the fine and ordinary office stamp.
FLETCHER V. HUGO.
On the application of Mr. Thorne, provisional
sentence was granted on a promissory note for
£56 68. 6d., with interest from the 22nd December,
1890.
JACKSON V. CUTTING.
Leave was granted, on the application of Mr.
Searle, Mr. Juta agreeing, for the case to stand
over sine die.
LIQUIDATORS CAPE OF GOOD BANK V. JOEL.
Mr. Schreiner prayed for provisional judgment
for £9,876 9s. 4d.— Provisional sentence granted as
prayed for.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted i Henry
Brink, Johannes van der Westhuysen, Johannes
Lodevicus Boux.
PARKER V. HOPKINS.— DE LUNATICO
IN QUI REN DO.
Mr. Schreiner, on behalf of the applicant, moved
that the rule nisi granted on Thursday last calling
upon the respondent to show cause why she should
not be declared of unsound mind and incapable of
looking after her own affairs might be made
absolute.
Dr. Herman, called by Mr. Schreiner, stated
that he had examined Mrs. Hopkins on the 1st
February at her house in Maitland. He found
that she was just recovering from a stroke of
paralysis and appeared to have completely lost her
memory. When he questioned her as to where
she was living she said in Kimberley. She had
forgotten her own name and appeared to be
Buffering from delusions, one of which was that
her father had fired the first gun at the battle of
Waterloo.
In answer to the Court, the witness stated that
physically the respondent was improving, but that
mentally she was becoming worse. If she com-
mitted a crime in her present condition he did not
think she could be held liable for her act. She
was not actually of unsound mind, but she was
weak minded.
50
Mr. Castens, the curator ad litem, informed the
Court that he had had an interview with Mrs.
Hopkins and found her condition such as had been
stated by Dr. Herman.
The Court found that the respondent was not of
sufficiently sound mind to look after her own
affairs, and appointed Mrs. Parker curator of her
property. Costs to be paid out of the estate.
DALTON V. QUINB.
On the motion of Mr. Castens, leave was given
to the defendant to sign judgment against the
plaintiff for failure to proceed with the action
instituted by him.
COLONIAL ORPHAN CHAMBER V. MABNITZ.
Postponed till 12th March.
THE GAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION.)
Mortgage Bonds satisfied and subsequently
lost or mislaid — Application for cancella-
tion of— Rule existing in registry of
Deeds, Cape Town — Refusal to comply with
rule by Registrar of Deeds King William's
Town — Rule nisi granted.
Mr. Bchreiner moved, on behalf of the liqui-
dators, for authority to the Registrar of Deeds at
King William's Town to cancel in the Debt
Registry certain three mortgage bonds, amounting
to £82,000, passed by Charles Edward Nioholls
and his wife in favour of the said bank, such
bonds having been satisfied, and subsequently
lost or mislaid. It appeared from the statement
of oounsel that a rule existed in the Deeds Office>
Cape Town, by which bonds that had been
satisfied and subsequently lost were cancelled on
notice being given in the Government Gazette and
newspapers of the district, in which the subject of
the bonds was situated. The Registrar of Deeds
at King William's Town refused to conform to
this rule without the authority of the Court, and
hence this application.
Mr. Justice Buchanan suggested that, as there
had been litigation about the bonds in question,
it was just possible that they might be among the
records of the Eastern Districts Court.
The Court granted a rule nisi, calling upon all
persons interested to show cause why the bonds
should not be cancelled. Notice of the rule to be
published in the Government Gazette and Eatt
London Dispatch.
THE CAPE OP GOOD HOPE BANK (IN LIQUI-
DATION) IN BE CABONEL'8 CONTBACT.
Company — Bank in liquidation — Contract
entered into between liquidators and debtor
of bank approved of by Court.
Mr. Bchreiner moved for leave to the liquidators
of the Cape of Good Hope Bank to enter into a
contract whereby the Baid Caronel shall be dis-
charged from his liability to the bank in terms of
agreement come to between the parties.
It appeared that Caronel was indebted te the
bank in the sum of £40,763, against which the
bank held scrip valued at £3,615. In considera-
tion of the liquidators abandoning any further
olaim against him, Caronel had offered them a
quarter-share in the farm Wesselton, which was
supposed to be diamondiferous. The liquidators
anticipated a large profit if the agreement were
sanctioned by the Court, whereas if they proceeded
to extreme measures with Caronel they would
probably get nothing.
The Chief Justice : In the event of the debts
being paid off in full, is the balance to be divided
between the liquidators and Coronel ?
Mr. Schreiner: That is the arrangement, my
lord, but a large sum of money may bo made by
the transaction.
The Chief Justice : Is the right to the quarter
in dispute ?
Mr. Schreiner : It is possible that it may be the
subject of litigation, but none of the expenses will
be paid out of the liquidation.
The order was granted as prayed for.
GAPE OF GOOD HOPE BANK (IN LIQUIDATION.)
Company — Bank in liquidation— Order in
terms of Liquidators' Report — Dividend —
Remuneration of Liquidators.
Mr. Schreiner moved for an order in terms of
the recommendations of the official liquidators,
contained in their second report, dated 2nd
February instant. Continuing, counsel said the
first matter he would mention was that, owing to
some oversight, the publishers of the Cape Argxu
omitted to insert the last order of Court, conse-
quently publication as ordered had not been fully
complied with. However, as the Argus published
the second report in full, together with a full
report of the application, he would ask that that
might be taken as sufficient compliance with the
order.
The Chief Justice assented.
Mr. Schreiner then moved for leave to pay a
second dividend of 6s. in the £ on and after the
1st of March. Assets were in hand snifioient to
51
eorer it, and be also requested that the liquidators
might have power to pay future dividends from
time to time, as the funds permitted.
The Ceurt fixed the future dividends at not less
than la., but left it to the discretion of the liqui-
dators as to inor easing that amount.
Mr. Sohreiner remarked that the only remaining
order was regarding the liquidators' remuneration.
They had been anxiously engaged in the liquida-
tion, to the almost entire exclusion of other
business. The liquidation was the largest that
there had been in the country, and the position of
the hank was wholly unlike any other in respeot
of the number of branches. In the matter of the
Union Bank the two liquidators appointed were
gentlemen who represented certain companies, but
in the Cape of Good Hope the case was different.
The Chief Justice: Is there any large staff
engaged?
Mr. Sohreiner: A certain number ef the old
employe's have been kept on.
The Chief Justice : Has anything been saved by
having so many liquidators ?
Mr. Sohreiner replied that a good many clerks
at the various branches had received notice, and
tome of the liquidators were generally away. One
had been in the Transvaal, and the others had
their hands full.
The Chief Justice: The question is on what
principle the remuneration is to be computed. Is
it to be on salary er percentage ?
Mr. Sohreiner suggested that up to £1,500,000
the liquidators might divide 1 per cent.
The Chief Justice : That would mean £15,000.
Mr. Schreiner : But it will extend over a period
of three years, and will be only about £1,000
tach per year. Then after that I suggest there
may be the ordinary insolvency allowanoe above a
million-and-a-half of 2£ per cent.
The Chief Justice remarked that when the
liquidators were appointed the Court pointed out
that the number wsb very large, and it was pro-
bable the same amount would be awarded as if
two first-class men had been appointed. He was
inclined to think the remunerations should be a
salary for the first year of £4,000, or £800 each,
and let the succeeding years be decided afterwards.
Mr. Schreiner stated that the Transvaal liqui-
dators had one-half per cent, on the assets
collected, and £100 each for the very short time
the three of them were in office. The Cape liqui
dators had naturally a delicacy in discussing the
matter of remuneration.
The Chief Justice : I don't see why counsel
should have. (Laughter.)
Mr. Schreiner : Well, the delicacy reflects itself.
(Renewed laughter.)
The Chief Justice said that creditors had had
no opportunity of expressing any opinion as to what
the remuneration should be, and in the absence of
any suoh expression of opinion the Court thought
that for the first year £4,000 would be sufficient.
What the remuneration was to be in subsequent
years would depend to a great extent on the
expression of the wishes of the oreditors, and on
the actual result of the liquidation.
The second report, together with the recom-
mendations contained in it, was then confirmed.
WILSON V. WILSON AND MINNAAB.
Mr. Juta moved, en the petition of the first-
nan ed defendant, for leave to defend in forma
pauperis the action instituted against her by her
husband for divorce.
It appeared that there was an informality in
the matter, one of the parties, who was a J. P.,
having certified that the other party was not
worth property of the value of £10.
Mr. Justice Buchanan said they would soon
have a clergyman marrying himself. (Laughter.)
The application was granted, subject to the pro-
duction of a proper affidavit.
CLABIDGE V. KBLLAWAY.
Mr. Juta stated that the amount settled upon by
the parties in this action, heard yesterday, was
£262 8s. 8d.
The Chief Justioe said the judgment would
therefore be for the plaintiff for that amount as
tendered, plaintiff to pay costs, the furniture to
remain his property until payment of the tender
is made, less defendant's taxed costs in the suit.
FRANCIS BBOS. V. SCHUNKB.
On the application of Mr. Searle, this matter
was allowed te stand over until to-morrow.
SUPREME COURT.
FRIDAY, FEBRUARY 20.
[Before the Chief Justice (Sir J. H. DB
VlLLlEBS), Mr. Justioe SMITH, and Mr
Justice Buchanan.
OLIVER V. OLIVBB AND PECKOVBB.
Divorce — Damages — Assault — Claim in re-
convention.
Mr. Schreiner and Mr. Molteno appeared for the
plaintiff ; the first-named defendant in default ;
the co-defendant appeared in person.
Mr. Sohreiner, having obtained leave to amend
the declaration, stated.that the action was instj-
52
tilted by the plaintiff (Mr. Robert William
Edward Oliver), a shopkeeper, carrying on business
in Heidelberg, in the district of Swellendam,
against his wife, Mrs. Alida Maria Oliver (born
Brand), for divorce by reason of her adultery with
the oo-defendant, who until lately had been a
" captain " in the Salvation Army. Damages for
£260 were claimed against the oo-defendant. The
oo-defendant, in his plea, denied the alleged
adultery, and claimed in reconvention the sum of
£500 in respect of an assault committed upon him
by plaintiff (the particulars of which are fully set
forth in the co-defendant's statement). The
replication admitted the assault, but pleaded that
it had been committed under great provocation,
and tendered in satisfaction of same £50, to be
deducted from the damages which might be
awarded to the plaintiff.
Mr. Nerman Lacy, clerk in the Colonial Office,
having produced the marriage register,
Mr. Sohreiner called the plaintiff,
Mr. Oliver, who stated that he was married to
the respondent at the Dutch Reformed Church,
Heidelberg, in 1880. There were five children,
the youngest eight months old. The co respondent,
Peckover, came to Heidelberg about March last
year. He was an officer of the Salvation Army,
in which witness was also at that time interested.
Peokever had his meals at witness's house, to
whioh he had free access. In November last
the oe-respondent went to Riversdale. About the
previous July witness reoeived information upon
which he taxed his wife with infidelity, but she
denied it, and referred him to Peckover. She
admitted that whilst witness was away they had
been up late hanging pictures, and Peckover con-
firmed this. As he was a captain of the Salvation
Army, witness believed him. There was a Mrs.
and Miss Osmond in the house during August
and November. When witness returned his wife
reoeived him very coldly, but appeared distressed
at Peckover's departure. On account of a letter
which witness saw, his suspicions were again
awakened, and he intercepted a letter at the
post-office addressed to Philda Adrianse, a servant
of his, who gave him permission to open the letter,
whioh was in Peckover's handwritting. About
the same time he received a letter from Peckover,
thanking him for his kindness. Co-respondent
was a single man, so far as witness knew. The
letter addressed to Philda Adrianse was really to
witness's wife. It was a long one couohed in most
affectionate terms.
Mr. Sohreiner informed the Court that it ran
to ten brief sheets.
The Chief Justice : It is a sermon ? (Laughter.)
Mr. Sohreiner : Is it more like the Song of
Solomon. (Great laughter.)
Evidence having been given showing the
relations between Peckover and Afro. Oliver,
Mr. Sohreiner was proceeding to call other
witnesses, when
The Chief Justice said that for the present the
letter showed the relations between the parties.
Addressing the co-respondent, be asked him if he
had any witnesses.
Peckover : No.
The Chief Justice: Do you wish to give
evidence yourself ? — Yes, my lord ; I would like
to speak on several matters.
The question is whether you will give evidence
on oath. Do you understand ? We cannot waste
time?— Yes. [Co-respondent then went into the
box.]
Have you seen this letter ? — Yes.
Did you write it ? — YeB, my lord.
It is a very affectionate letter ? — Yes.
Well, is the statement that you were in the bed-
room with Mrs. Oliver true or not? — Mrs. Oliver
called me in, and I went to the door. She said
she was sick. I said I was very sorry. I left,
after Baying " Good night." It is not true I took
my boots off.
You say you never committed adultery with
her ? — I never did.
Now, about the tarring and feathering ; what do
you say to that?— On the 22nd November I re-
ceived a letter from Mr. Du Preez, Mr. Oliver's
agent, respecting some money, and stating that a
letter had been discovered which would be used
against Mrs. Oliver in an action for divorce. I
was at Riversdale, and I said to my " lieutenant,*'
" I shall resign at once, in order not to bring the
Army into disgrace, before the things oome out to
the world." I wrote my resignation, and proposed
to leave for Kimberley. I left by private cart,
and arrived at Heidelberg in the morning. After
breakfast at a friend's house, I was walking up,
when I heard the sound of voices, and found a
crowd of men coming towards me.
Now come to the point. What did they do to
you? — They made a run for me. Mr. Kemp
caught hold of me.
Is he a member of the Salvation Army ?— No,
he is a canteen-keeper. (Laughter.) Proceeding,
witness said the crowd then put him in a wool-
sack. Mr. and Mrs. Oliver were among the crowd,
and she was asking her husband not to have any-
thing to do with the affair.
She saw yoja put in the woolsack ? — I believe so.
Mr. Justice Smith : Had you your clothes on ?
Yes. They pulled or dragged me from the hill to
Mr. Oliver's office, and there, by the order of Mr.
Oliver and others, I was undressed. They took all
my clothing off except just a flannel band round
my waist. Then I was tarred with a tar-brush
from the head to the knees, and then the feathers
were thrown all over me.
The Chief Justioe : Were you quite undressed ?
Witness : Yes, I had just one sook on, and the
53
band round the waist. I ran to the door and
aiked for clothes, and was kicked off the stoep.
Then I went straight to the Magistrate, and made
a deposition. Mrs. Oliver was near, and cried.
"Never mind, Peckover, God sees all, and knows
yon are not guilty." She did not say as the plain-
tiff alleged, " Didn't I tell you yon would get me
into this trouble ?"
What about the letter ? — It was written by me,
but I am very sorry it was. It was written in
reply to one from Mrs. Oliver.
Then all the affection came from her ? — Well, it
was her winning ways and conduct towards me
that led to this.
Cross-examined by Mr. Schreiner: I was enter-
tained by Mr. Oliver. He was then a friend of
mine.
The Salvation Army won't tolerate what has
been proved against you ? — No, of course not.
Have you ever kissed Mrs. Oliver ? — Yes.
How many times, thousands ? — No.
What do you mean by putting " thousands of
kisses " in pictorial style in that letter — a bathful,
a seaful of kisses and love, and more to follow "—
what do they mean ? — They mean nothing.
Is that your habit with women generally ?— No.
What does " O.G." mean at the bottom of the
letter ?— There is no definite meaning. I just put
it without any definite meaning to it.
It simply bubbled out of your affection ?—
Witness did not answer.
The Chief Justice pointed out that there would
have been ground for damages if the plaintiff had
not taken the law into his own hands to feather
and tar the co-respondent.
Mr. Schreiner submitted that the damage
sustained by the co-respondent was not equal to
that sustained by the plaintiff. Peckover 's act
was a dastardly violation of the hospitality of a
friend, under the guise of a minister of religion.
His conduct had been most atrocious.
The Chief Justice: Can the respondent pay
anything at all ?
Mr. Schreiner : 1 believe there may be some
payment.
This concluded the evidence, and the oo-respon-
dent briefly addressed the Court, observing that
he had sustained great damage to his character —
(laughter) — through these proceedings, and seeing
that the charge had not been proved, he asked for
monetary redress.
Mr. Justice Smith : What is your occupation ?
Co-respondent : I am a grocer by trade.
The Chief Justice, in giving judgment, said he
had no doubt whatever that the co-respendent had
been guilty of adultery with the respondent, Mrs.
Oliver, and it was committed under circumstances
which had been justly commented upon by Mr.
Schreiner as being of a very aggravating character.
The co-respondent Peckover was harboured in the
plaintiff's house as a friend, and treated hospitably,
and the reward of his kindness was for Peckover
to commit adultery with his wife* If the plaintiff
had not taken the law into his own hands, and it
had been proved that the defendant had means to
pay, the Court would undoubtedly have awarded
heavy damages, but plaintiff appealed only to his
own private tribunal, collected his friends, and
committed a most gross assault on the co-respon-
dent. In respect of the assault, under ordinary
circumstances, the Court would have given very
substantial damages to the co-respondent as
against the plaintiff. Under all the circumstances
the Court thought some damages ought to be
awarded to the plaintiff, notwithstanding the fact
that he took the law into his own hands, but they
would be only £50. The plaintiff admitted the
damages he ought to pay to the co-respondent te
the same amount, and the damages awarded to the
one would be set off against the damages awarded
to the other. Judgment would therefore be for
the plaintiff as against the first defendant, his
wife, for a decree of divorce, with the custody of
the children, and as against the co-respondent,
Peckover, for £50 damages with costs. In regard
to the claim in reconvention by the co-respondent,
judgment would be given for the plaintiff in re-
convention for £50, but notwithstanding that he
(Peckover) was awarded seme damages, the Court
was of opinion that he should pay all costs of the
suit. The first defendant (Mrs. Oliver) would
forfeit all the benefits she received by virtue of
marriage in community.
GILL Y. HIRSCH.
Trespass — Damages — Road — Divisional
Council— Acts 27 of 1884 and 40 of 1889.
— Perpetual Interdict.
Sir T. Upington, Q.C., and Mr. Graham for the
plaintiff.
Mr. Schreiner and Mr. Webber for the defendant.
This was an action for trespass and damages
instituted by the plaintiff, Professor James Gill,
against the defendant, Mr. Isidore Hirsch. Both
the parties live in Muizenberg. It appeared from
the opening statement of counsel that defendant,
at different times between the years 1888 and 1890,
dug and carried away sand from plaintiff's ground,
which abuts the main road to Simon's Town,
thereby endangering, as it was alleged, plaintiff's
fences and trees, and causing damage in respect of
which £100 was claimed. Last term Mr. Justice
Smith made absolute a rule nisi interdicting the
defendant from continuing the acts complained of,
and directing the applicant to bring an action
forthwith to assert his rights. The case now came
I on for hearing.
54
Mr. A M. de Witt, oivil engineer, stated that he
had examined Professor Gill's fenoes and ground,
and had prepared the plan put in.
Cross-examined by Mr. Schreiner : Witness
conld not say if the trees had been damaged, the
roots were certainly exposed.
Professor Gill, the plaintiff, examined, stated
that he bought the property in 1881. About
eighteen months ago he saw a man named John
van der Poll digging sand in front of his house.
Witness told him to desist and he went away, but
en the following day he saw Henry van der Poll,
and subsequently a man named De Bruins, digging
in the same place; the latter told him he was
digging the sand for defendant with the permis-
sion of the Divisional Council. Witness imme-
diately wrote to Mr. Hirsch, and received as a
reply a "memo " on his own letter from defendant
saying that he (witness) was not to bother him
with any more letters. He subsequently learned
from the secretary of the Divisional Council that
no permission had been given Hirsch to dig for
sand en the ground. His fence and trees had been
considerably damaged, many of the tap roots even
being exposed.
Cross-examined by Mr. Schreiner : Witness had
waited a considerable period before taking action
in the matter, as he was waiting for Mr. Johnson,
the road inspector, to come and view the part of
his property injured. It was only in August last
when he heard defendant tell De Bruins to cut
away all the bank that he applied for an interdict.
He was of opinion that the tap roots of the Port
Jackson willows had been out through ; the roots
all along the bank had been cut and were hanging
in " festoons."
Mr. Hugo, examined by Mr. Schreiner, stated
that he was a member of the Cape Divisional
Council. He had seen the embankment from
which the sand had been taken away. He was of
opinion that, for ordinary purposes of traffic, the
road was wide enough, but it was very desirable
that it should be widened. The Divisional Coun-
cil had appointed a committee to define the limits
of the road. He thought 30 feet would be a
proper limit. He did not think any damage had
been occasioned by removing the sand.
Mr. Molteno (Government Surveyor) put in a
plan which he had prepared, and expressed his
opinion that no damage had been done to Pro-
fessor Gill's property.
The Chairman of the Financial Committee of
the Divisional Council was then examined, and
corroborated the evidence of Mr. Hugo.
Joseph Norman, overseer of roads, stated that
he had given permission to remove the sand, act-
ing upon discretionary powers given him by Mr.
Lister, the former inspector.
Mr. Hirsch, the defendant, examined by Mr.
Schreiner, stated that since 1881 he had been
getting sand from different parts of the embank-
ment all along the road. He had no permission
from the Divisional Council. Mr. Lister, the
former inspector, had always told him where he
oould get the sand from. No damage had been
done to Dr. Gill ; on the contrary, his property
had been improved.
This closed the evidence.
Mr. Schreiner, for the defendant, contended that
the property in the road was vested in the
Divisional Council, and that it was for the Court
to define the fair limits of the road. He referred
the Court to Acts 27 of 1884 and 40 of 1889, and
submitted that this action would never have been
brought were it not that a certain amount of bad
feeling existed between the parties, the maxim de
minimis non curat lex applied, and the Court ought
to take that view of the matter.
The Court, without calling upon Sir T.
Upington, gave judgment for the plaintiff, made
the interdict perpetual, and awarded £10 damages
and coBts.
SUPREME COURT.
MONDAY, FEBRUARY 23.
[Before the Chief Justice (Sir J. H. DE VILLIERS,
Mr. Justice Smith and Mr. Justice
Buchanan.]
robertson v. robertson.
Mr. Graham for the plaintiff; defendant in
default. This was an action instituted by Mr.
William James Robertson against his wife Emma
Violet Scott Robertson (born Brown) for divorce
by reason of her adultery with one Julius Hacker.
The Court, after hearing the evidence of Mr.
Robertson, granted the decree as { rayed for, gave
the plaintiff the custody of the child — the only
issue of the marriage — and ordered the defendant
to forfeit all benefits under the marriage contract.
IN THE INSOLVENT ESTATE OF MESSRS. DE
WAAL AND CO.
On the application of Mr. Molteno, Mr. Petrus
Jacobus Bosman was appointed provisional
trustee, with power to carry en the farming opera-
tions in the estate.
D'ARC Y. BENSON AND MCDERMOTT.
Interdict restraining sale of effects attached
by Deputy Sheriff pending decision of
Court as to property in said effects.
Mr. Searle, on behalf of Mr. Brodaak, applied
$£
for an interdict to restrain the sale of defendants 1
effects at present attached by the Deputy Sheriff
of Uitenhage under an order of the Supreme
Court, on the grounds that the property in ques-
tion, which consisted chiefly of roller skates, had
been sold to Mr. Brodziak before the order of the
Court had been made.
The Court granted a rule nisi restraining the
tile pending the decision of the Court as to the
property in the goods in question, one copy of the
rule to be f erred on the Deputy Sheriff of Uiten-
hage and the other on D'Arc.
KUUN V. SCHALKWYK.
Negligence — Bursting of Dam — Vis major.
Mr. Schreiner and Mr. Graham for the plaintiff.
Mr. Searle and Mr. Watermeyer for the
defendant.
This was an action instituted by Lourens Chris-
tian Kuttn against the defendant Gerrit Duikse
van Schalkwyk, for £150, damages alleged to have
been sustained by the bursting of a dam on the
defendant's farm. Both the parties are farmers
redding in the district of Victoria West, and are
owners of adjoining properties. On the 30th
October, 1890, a dam, which had been built for
about thirty years and was situated on Taaibosch-
fontein, the defendant's farm, burst owing to an
unusually severe storm and consequent rising of
the river. The water issuing from the dam
rushed down with great violence on to the farm of
plaintiff (Grootfentein). The walls of plaintiff's
garden were carried away, the garden itself and
the lands under cultivation were inundated, and
his water-furrow considerably injured. In respect
of these injuries damages were claimed. The
defendant, in his plea, admitted the bursting of
the dam, but denied that it had been occasioned
through any fault of his, and pleaded that he was
not liable for the act of God or Vis major.
Mr. KtiUn, examined by Mr. Schreiner, gave
particulars as to the bursting of the dam and the
rush of water on to his land. With regard to the
amount of damage which he had sustained he
calculated that it would cost 2s. a yard to rebuild
his wall, injury amounting to £20 had been done
to his furrow, £10 had been expended in repairing
the wall at the river, and he could not value his
vegetable garden at less than £10 ; he had also
lost considerably over his crop of wheat.
Cross-examined by Mr. Searle : His sluice was
broken on the 80th October, between four and five
pjn. On the 4th November the field-cornet came
sad assessed the damages. He said then that he
estimated the damages at £25. He did not at that
time, however, knew that his wheat had been
injured. He did not remember the field-oornet
giving him a paper on which the damage had been
assessed at £16.
Mr. Auret, examined by Mr. Schreiner, stated
that he was a land surveyor, residing in Victoria
West, and had prepared the plan put in. The
depth of the water at the wall was about. 12 feet,
allowing 6 feet of silt. The dam had not been
repaired when he saw it. The length of the break
in the wall was about 60 feet. He had had ex-
perience in dams, but had never constructed any.
Cross-examined by Mr. Searle : He had only
made a rough sketch. He did not measure the
main stream at any point.
Several other witnesses having corroborated the
plaintiff's evidence with regard to the damage,
Mr. Jacobus Schmid stated that he had been at
one time part owner of Grootfontein. He had
seen the damage which had been done, but could
not estimate it.
Cross-examined by Mr. Searle: He knew that
Mr. Levenberg had assessed the damage at £16,
but witness could not say if that were a fair
valuation.
In answer to the Court, witness could not say
whether the inundation of the lands had produced
rust.
SUPREME COURT.
TUESDAY, FEBRUARY, 24.
Before the Chief Justice (Sir J. H. DB
VlLLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
KUUN V. SCHALKWYK.
The further hearing ef this case was resumed.
Mr. Schreiner, and Mr. Graham, for plaintiff.
Mr. Searle, and Mr. Watermeyer, for the
defendant.
John George KttUn, attorney-at-law, examined
by Mr. Schreiner, stated that he had been on the
farm Grootfontein a few days after defendant's
dam had burst. The water had washed above the
sluice wall. The sluice was being built up when
he saw it. Three sides of the garden wall had been
damaged, and 184 yards in all had been washed
away.
Cross-examined by Mr. Searle: He was in-
structed to write to defendant, olaiming £150
damages some time after he had visited Groot-
fontein. He had heard that the field-cornet had
been to the farm, but he had not received the
paper referred to in Mr. KUUn's evidenoe. Witness
had been a farmer before he became an attorney,
but he had no experience in building walls.
This ooneludsd the evidence for the plaintiff.
f 1
56
Mr. G. D. van Sohalkwyk, the defendant,
examined by Mr. Searle, Btated that he had been
the owner of the farm Taaiboschfontein for fifteen
yean. It was a large farm, in extent about 8,200
morgen. He had several dams in his farm. About
twelve years ago he increased the Taaibosch-
fontein dam by about 20 yardB in length and 4 feet
in height. The dam could contain 3 feet 2 incheB
ef water. His house was situated below the dam,
and further down were cultivated lands and kraals.
On the 80th October last the dam burst. A
fearful storm passed over his farm between five
and six p.m. on that day. He had never seen a
more severe storm in that part of the country ;
patches of the veld were washed away, his furrows
were injured, and about 1 00 feet of the top of his dam
were carried away. On the following Saturday he
received a letter from Mr. Kuttn claiming damages.
On Thursday, 30th October, before his dam burst
there was a torrent of water rushing down the
main furrow. He had alwayB kept his dam in
good repair, and in the month of February
preceding the accident he had had his dam
thoroughly overhauled and repaired. No com-
plaints bad ever been made as to the state of his
dam. He had frequently seen the sluice on
plaintiff's farm as he was riding along the road ;
the top of the sluice used to be lower than the
banks of the river, but lately it had been built
higher. To witness's knowledge the sluice had
been washed away several times, and this had
happened four times during the occupation of the
farm by the plaintiff, that is within the past four
years. In answer to the Court, the witness
further stated that the water from his dam would
probably have reached the plaintiff's farm about
8.30 on the evening of the 80th October. Last
year his crops and his neighbours' had suffered
from rust. When he first saw Kttlln after the
acoident the latter estimated his damage at £25,
but subsequently witness received a letter of
demand for £160.
Cross-examined by Mr. Schreiner : The storm
appeared to pass over Taaiboschfontein and Groot-
fontein, but most of its force was expended on
witness's farm. None of Mb stock had been
injured by the storm. He had his evening meal
between eight and nine. The dam burst before
this hour. His house was situated about 600
yards from the dam.
Several witnesses having corroborated defen-
dant's evidence,
Mr. Levenberg (field-oornet), examined by Mr.
Searle, stated that he lived about twelve miles
from plaintiff's farm. On the 4th November he
received a letter from Mr. Ktttin, asking witness
to come to his farm and assess the damage which
had been occasioned by the bursting of defendant's
dam. Witness assessed the damage at £16, and
Ktiiln appeared satisfied with that amount. Ho
had measured defendant's dam after the accident.
It was 29 feet at the base and 4£ feet at the top
He considered the dam had been substantially
built. His wheat had suffered from rust this year.
In answer to the Court, witness stated that he
was of opinion that if the sluice were not in its
present position, and the bank of the river were in
its natural state, the plaintiff's land would not
have been inundated.
Cross-examined by Mr. Schreiner : In estimat-
ing the damage he had allowed for the destruction
of 160 yards of wall, for re-erecting the sluice, and
for repairing the furrow. He had not seen de-
fendant's dam before it had burst.
Frederick Manuel stated that he was in Mr.
Kttun's employment last year, but at present he
was in the service of the defendant. He was
present when the sluice was washed away. It was
about half-an-hour before sunset. After the sluice
had been washed away he went to oolleot the
cattle.
Cross-examined: He left plaintiff's service
about a month ago. He had been in the " tronk "
on a charge of having poisoned his wife, but had
been acquitted at the trial. The information on
which he was arrested had been lodged by plain-
tiff He remained in the house during the
rain. He afterwards went to look at the sluice,
and found that it had been washed away.
Re-examined : After he had been acquitted he
was for a year in the service of the plaintiff.
The evidence of Mr. Smid closed the case for
the defendant.
Mr. Schreiner having addressed the Court,
The Chief Justice, without calling upon Mr.
Searle, remarked that he was clearly of opinion
that the injury sustained by the plaintiff had been
caused, not by the bursting of the defendant's dam
but by the swollen condition of the river conse-
quent on an unusually severe storm. All the facts
were in defendant's favour, more especially with
regard to the time when the land was flooded.
The water from the dam could not have reached
plaintiff's land until about 8.30 p.m., whereas the
plaintiff swore that his sluice had been washed
away between four and five p.m. The plaintiff's
case had wholly failed, and therefore judgment
would be for the defendant with costs.
MACKIE DUNN AND CO. V. THE POTCHEff-
8TBOOH EXCHANGE COMPANY.
Attachment of fluids in hands of Company
ad fundandam jurxsdictionem — Einwald v.
The German West African Company
(5 Juta 86) considered and followed*
Mr. Schreiner moved, on behalf of Messrs.
Mackie, Dunn <k Co., of Port Elizabeth, for an
i>7
order to attach the whole or part of £6,000 due
from the Commercial Union Assurance Company,
of Cape Town, to the Potchefstreom Stock
Exchange Company (Limited), in order to found
jurisdiction in an action abont to be brought by
the applicants for the recovery of £264 14s. 3d.,
with interest from July, 1890, being a debt
originally owing by the defendants to one Falkiner
in part payment of the contract price for erecting
the exchange, thereafter assigned to one Selinger,
and by the latter ceded to the petitioners. The
applicants stated that their debt was wholly un-
secured, and haying learnt that £6,000 was owing
by the Company on a fire policy, desired to attach
it
The Chief Justice remarked that the mere fact
that there was property in the country belonging
to the defendants did not give jurisdiction.
Mr. Schreiner submitted that inasmuoh as the
defendant Company had entered into a contract
within the jurisdiction, namely in Cape Town,
with the Commercial Union Assurance Company,
that was sufficient to enable the Court to grant
the order applied for.
The Chief Justice said that the plaintiffs might
adopt the course of saying to the Insurance Com-
pany that if they paid the claim out of the
£6,000 they would indemnify them.
Mr. Schreiner said the Assurance Company
would not do this without an order of Court.
The Chief Justioe, in refusing the application,
laid as at present advised he could not distinguish
this application from that of "Einwald v. The
German West African Company," where the
Court went fully into the law. For the present the
application must be refused, but if Mr. Schreiner
could find any authorities showing that a distinc-
tion existed between the case of a person saing on
the original contract and a person suing as
cessionary and being domiciled in the Colony, he
would still be at liberty to apply again.
PREI88 Y. GLUCKMAN.
Action— Postponement of in consequence of
unavoidable absence of defendant — Pay-
ment of tender.
Mr. Schreiner, on behalf of the defendant,
applied to have the case which is set down for
trial on the 27th instant postponed, owing to the
defendant being in the Free State.
Mr. Juta opposed the motion, on the grounds
that the defendant had had ample notice of the
date of trial.
The Court granted the postponement on condi-
tion that the defendant immediately paid to the
plaintiff £42 14s. 10d., the amount of his tender,
and the costs ef the present application.
I
CAMPAAN V. CAMPAA7*.
Mr. Jones moved on behalf of Louisa Frederika
Campaan, at present living at Xalanga, Tembu-
land, for a decree of restitution of conjugal rights
against her husband, John Hawkes Campaan, at
present living at Middelburg, in the Transvaal.
The parties were married at Dordrecht in
November, 1885, and lived together about six
weeks, when the husband deserted his wife, whe
had never seen him since. She had asked him to
come back, by letter, but he had refused.
The Court granted the decree, the defendant to
return to his wife, or receive her, on or before the
81st March, failing which to show cause on the
first day of next term why a decree of divorce
should not be granted.
WALKER V. THE GAPE CENTRAL RAILWAYS.
Sir T. Upington, Q.C., and Mr. Juta for the
plaintiff. Mr. Schreiner and Mr. Graham for the
defendant company.
This case which was to have been tried to-day
before the Chief Justice and a jury, was, on the
application of Sir T. Upington (to which Mr
Schreiner consented), postponed till the 14th
April. The names of thirty-six jurymen who had
been summoned were read over and answered to ;
of these, twenty were struck off the list, and the
remaining sixteen reoeived notice to present them*
selves on the morning of the 14th April.
THE GAPE OF GOOD HOPE BANK (IN
LIQUIDATION.)
Mr. Schreiner, on behalf of the liquidators of
the above bank, applied for an order confirming an
arrangement which had been entered into with
Mr. James Wroe, of Potohefstroom, who it appears
owes the bank £8,000. Against this amount the
liquidators hold securities to the nominal value of
£1,821. The liquidators propose, in addition to
these securities, to accept the sum of £900 in full
discharge of Mr. Wree's indebtedness.
Confirming order granted as prayed for.
WRIGHT V. WILLIAMS.
This case, which had been postponed from the
11th inst., came on for further hearing.
Sir T. Upington, Q.C., appeared for plaintiff ;
the defendant in default. The action was for
damages on the grounds of defendant's alleged
fraud and misrepresentation.
Captain John Spenoe stated that he was the
agent of Daniel de Pass, and knew both plaintiff
and defendant. He had given evidence in the
former case, which had been tried before Mr.
Justice Smith, Williams had no authority from
him to enter into a contract with defendant with
5,8
regard to the "lay," his authority only extended to
the question of wages. He had been summoned
to produce all documents in his possession relating
to the engagement of seamen. Witness then
explained to the Court that formerly mates in the
service of Mr. De Pass used to receive £2 a month
and " lay," and ordinary seamen £1 a month and
" lay." This system of paying the men was found
not to answer, and the present system was then
adopted, under which all men employed by the
firm receive monthly wages, and are not entitled
to " lay " unless they have been specially recom-
mended for it, and then it is only given as a
gratuity. The plaintiff had been very unfavourably
reported upon by Captain Williams, but on
witness's suggestion his wages, and an ordinary
seaman's proportion of " lay," amounting in all to
about £88, were offered to him, but would not be
accepted, the plaintiff claiming £72. Plaintiff
then brought an action against De Pass for £72,
but only got judgment for £23 odd, the Court
holding that as no mention had been made of
" lay " in the shipping articles, plaintiff was only
entitled to his actual wages.
Sir T. Upington, addressing the Court on behalf
of the plaintiff, contended that there was perfectly
clear evidence that the defendant had fraudulently
induced the plaintiff to enter into a contract which
he (defendant) had no authority from De Pass &
Co. to make. Counsel in his argument referred to
the oases of " Callen v. Wright," 7, E. <k B. 801,
" Cherry v. The Colonial Bank of Australasia," 3,
P.C.B. 24, and " Richardson v. Williamson," 6, Q.B.
276, and submitted that under all the circum-
stances of the case plaintiff was entitled to
judgment.
The Chief Justice remarked that the Court
laboured under a certain amount of difficulty,
owing to the absence of the defendant, who might
be able to put quite a different complexion on the
whole matter. Under the circumstances the
Court would take time to consider.
SUPREME COURT.
THURSDAY, FEBRUARY 26.
Before the Chief Justice (Sir J. H. DE VlLLIERS),
Mr. Justice Smith, and Mr. Justice
BUCHANAN.
PROVISIONAL ROLL.
EXECUTORS 07 DE KLERK Y. DE KLERK.
In this matter, whioh was before the Court
od the oth February, provisional sentence
was refUsed on the grounds that the
defendant had denied his signature.
Sir T. Upingten, Q.C., on behalf of the execu-
tors, now moved for provisional judgment on a
mortgage bond for £3,500.
Mr. Juta opposed the motion.
It appeared from the affidavits read by counsel
that a certain farm known as Kafir's Kraal,
situated in the district of Victoria West, had been
sold by Jan Abraham de Klerk to his son,
Johannes Abraham de Klerk, and a mortgage
bond in respect of this transaction had been given
by the son, who now contended that the farm had
never been sold to him, that he had signed the
bond in ignorance, and finally that there had been
no consideration for the bond.
The Chief Justice, on the conclusion of the
argument, said there was no doubt there had been
a mistake in transferring to Jan Abraham de
Klerk the father, instead of to Johannes Abraham
de Klerk, the son. The latter had had consideration,
for he had been living on the farm, rent free,
from 1884. He also pointed out that "Jan" was
Dutch, and " Johannes " was the ancient Latin
form of the same name, therefore they were
practically one. In an endorsement of the bond
by the father, he found that on account of the
depressed condition of the Colony the father had
directed that his son was not to pay interest on
the bond. The oase had been postponed until
to-day, because the defendant had denied his
signature. Now he admitted the signature, but
said that he did not understand its meaning. He
thought the explanation was wholly unacceptable.
It was quite clear from the power-of-attorney that
he treated the property as his own, and that he
passed the bond for £3,500 by which the property
was mortgaged. It appeared that the bond covered
cash advanced, which was the reason why it
amounted te £3,500, more than the purchase price of
the property itself. The only point made by the
defendant was the fact that the father had him-
self made an application to the Government for
an adjoining piece of land, in which application
he treated the land as his own. The father
unfortunately was dead. Mr. Juta contended that
his client's name was Jan, and the transfer was in
favour of Johannes. Well, the two names were
virtually the same. The executors did not claim
the land on behalf of the father's estate, and they
were now prepared to relinquish all right to it,
and on this condition provisional sentenoe would
be granted against the defendant, property to be
executable.
IMPEY, WALTON AND CO. V. EDGAR PERKINS.
On the application of Mr. Tredgold, provisional
judgment was granted for the sum of 21 5s. 3d.
REHABILITATION.
On motion from the bar, the rehabilitation of
Eliza Bloam was granted.
59
THE PETITION OP JOHN LEVATT.
On the application of Mr. McLachlan, per-
mission was granted to applicant to sue in forma
pauperis in an action against his wife for divorce.
IK THE INSOLVENT ESTATE OF JAN H.
ENGKLBRECHT AOKEBMANN.
Mr. Graham moved for authority to the Master
to take proceedings for the appointment of a new
trustee to the said estate, in order to cancel a bond
which had been paid off, or for the Registrar of
Deeds to cancel such bond.
The Court granted the order empowering the
Master to take proceedings for the appointment
of a new trustee.
WILSON V. WILSON AND ANOTHER.
On the motion of Mr. Juta, the Court made
absolute the rule nisi admitting the applicant to
defend in forma pauperis the action for divorce
instituted by her husband.
VAN ZYL AND OTHEBS V. EXECUTRIX DE BEEB.
Mr. Bearle appeared for the applicants, and Mr.
Schreiner for the respondent.
This matter, which was an application for an
interdict to restrain the respondent from obstruct-
ing the flow of water in a furrow leading from the
farm Matrooaf ontein to Wittedrift, in the district
of Piquet berg, was, with consent of counsel en
both sides, ordered to stand over till the 12th
March.
II THE INSOLVENT ESTATE OF CHBISTOFFEL
J. VILJOEN.
Where the Court has appointed a Provi-
sional Trustee the appointment will not be
Bet aside unless at a meeting of creditors
one or more trustees are elected.
This was an application by Mr. Searle for the
appointment of Mr. Henry Nutall Chase as co-
trustee with Mr. Harry Gibson.
Mr. Schreiner, who appeared for the provisional
trastee, Mr. Harry Gibson, opposed the applica-
tion.
The Chief Justice, in giving judgment, said
there seemed to him to be no special circumstances
to justify the Court in departing from the
established practice. Upon the last oocasion the
impression on his mind was that if a fresh election
were ordered trustees would be elected, and that
there would be a majority in number as well as in
value for one or more trustees. The result was
duftrent. The ordinary rule was for the Court
to authorise a provisional trustee to finally
administer the estate. There were no special
circumstances to justify the Court in departing
from that rule. Mr. Gibson lived in Cape Town,
but the estate was not a large or difficult one to
administer. Certainly the case showed that in
future the Court should make some inquiries
before appointing a provisional trustee, and he was
bound to say that if Mr. Chase had also applied
when the provisional trustee was appointed, the
Court might have given preference to him. How-
ever, as Mr. Gibson had been appointed, the rule
would be adhered to, Mr. Chase to pay costs of the
day.
DUNA V. BABENKOLA AND ANOTHEB.
Mr. Schreiner appeared for the applioant ; Mr.
Juta for the respondent ; and Mr. Giddy for the
Resident Magistrate of Glen Grey (Mr. Jenner).
This was an application to show cause why an
action adjudicated upon by the Resident Magis-
trate of Glen Grey should not be brought under
review of the Supreme Court on the ground of
irregularity and non-jurisdiction.
Mr. Schreiner suggested that as the record was
before the Court the case might be heard as
though under review.
Mr. Giddy remarked that he was not at present
prepared to argue the oase on its merits.
The matter was allowed to stand over.
VAN HEEBDEN V. THE VICTOBIA WEST
MUNICIPALITY.
On appeal from the Resident Magistrate of
Victoria West.
Ordered to stand over.
BOSSOUW V. BOSSOOW.
Mr. Castens having obtained an order making
absolute the rule nisi admitting the applicant to
sue in forma pauperis in an action against her
husband for restitution of conjugal rights, failing
which for divorce, called the plaintiff, who stated
that Bhe was married to the defendant, Francois
Albertus Rosseuw, in 1875, at Robertson. After
having lived with plaintiff for six years, the
defendant deserted her, and was, she understood,
at present living in Barberton. She had frequently
written to her husband asking him to return, but
he had taken no notice of her letters.
In answer to the Court, the witness stated that
she wished to retain the custody of the four
children, the issue of the marriage.
The Court granted a rule nut calling upon the
defendant to show cause why he should not return
to his wife or receive her on or before the 1st of
May, failing which to show cause on the first day
ef next term why a decree of divorce should not
be granted,
60
HULBEBT V. C A PORN AND MARRIOTT.
«
Goods — Purchase — Repudiation by buyer.
Mr. Schreiner and Mr. Sheil for the plaintiff.
Mr. Jnta and Mr. McLaohlan for the defendants.
This waa an action instituted by Messrs. Hulbert
<& Co., mantle, trimming, and umbrella manufac-
turers of Wood-street, London, against Messrs
Gaporn & Marriett, linendrapers, of Plein-etreet,
Cape Town, for £148 12s. 6d., balance of account.
The defendants denied that they had purchased
oertain 102 garments described in the invoices as
" Garricks," and tendered £89 8s. 9d., the balance
of acoount less the cost of the " Garricks " and the
expenses connected with importing the same.
The evidence of the plaintiff's witnesses, wbich
was taken on commission in London, having been
read,
Mr. Juta called Mr. Arthur Leeson Caporn, who
stated that he was in London in September, 1889.
His brother and himself went to Messrs. Hulbert
6l Co.'s establishment in Wood -street, and were
there introduced to Mr. Nisbit, the manager ef the
mantle department. He bought several parcels of
goods, including a number of " VisiteB," but he
never ordered any " Garricks," in fact, he did not
know what they were until he had opened the
cases. He met Mr. Tipper in June, 1889, on the
voyage to Bngland. He made ' an appointment
with Mr. Tipper on the same day that he had
bought the goods from Hulbert & Co., and brought
him to look at his purchases. Mr. Tipper said the
goods were all right. He left Bngland in the
Nubian on the 13th September, and arrived in
Cape Town on the 7th October. The goods arrived
a month or so after. When the cases were opened
he saw the "Garricks" for the first time. He
gave instructions to have them placed on one side,
and directed that they should not be marked er
shown in the windows. Mr. Tipper called at his
shop in January. He rejected the " Garricks,"
because he had not ordered them, and besides they
were old-fashioned, and unBuited for the South
African market. He made an entry of the goods
be had bought from Hulbert & Co. in his' pocket-
book, but he had lost this book, he thought, at a
furniture sale. He had never heard the terms
" Garricks " applied to mantles.
Cross-examined by Mr. Schreiner : His brother
might have heard the word " Garricks," but he
(witness) did not. He might have looked at fifty
samples the day he was at Hulbert <fe Co.'s ware-
house. He had kept other articles which he had
not ordered. He purchased a large number of
" Visites " to clear. There were other customers
buying on the same day. The mantles produced
are the same aB those sent to England. (At this
stage of the proceedings considerable amusement
was caused in court by the production of a number
of the " Garricks " and " Visites," some of which
were fitted on by one of the lady witnesses.) The
ten mantles whioh he had bought he showed to
Mr. Tipper. He simply bought the mantles as
garments without any specifio name being given to
them. These ten mantles had been sent up-
country, he thought to Bloemf ontein. B e could
not say when the first lot of goods arrived. They
might have oome to hand on the 26th November.
When goods arrived they were immediately oleared,
and sometimes kept for months in the store before
they were opened. He agreed to give a six
months 1 bill for the first parcel of goods, the
second was an open account. He was of opinion
that the "Garrioks" had been wilfully packed
into the cases. He thought he lost his pocket book
at a sale of furniture. He did not look for the
book until he had reoeived the plaintiffs' letter.
— Re-examined by Mr. Juta: the ulsters were
invoiced as ulsters. "Toscos" were small capes
covered with beads.
Mr. Loton Tipper, examined by Mr. Juta,
corroborated the statements by last witness with
regard to seeing the goods that had been purchased
from Hulbert & Co. He could not remember
having Been the " Garricks."
Miss Bywater and Miss Hastings, assistants in
Messrs. Caporn & Marriott's establishment, were
also examined, and expressed their opinion that
the " Garricks " were antiquated and unsaleable.
The latter lady volunteered the information that
she had seen a similar garment worn by her
grandmother.
After hearing counsel, the Chief Justice inti-
mated that the Court would take time to oonsider
whether they would require to hear any further
arguments.
SUPREME COURT.
FRIDAY, FEBRUARY 27.
[ Before the Chief Justice (Sir J. H. DB VILLIEBS,
Mr. Justice SMITH, and Mr. Justice
BUCHANAN.]
HULBEBT V. CAPORN AND MARRIOTT.
Mr. Schreiner and Mr. Sheil for the plaintiffs.
Mr. Juta and Mr. MoLachlan for the defendants.
Mr. Juta having concluded his address to the
Court,
The Chief Justice, in giving judgment, remarked
that there had been a great conflict of testimony
in the case. The evidence of plaintiff's witnesses
given on commission in England, was quite con-
sistent with the facts of the case, whereas the
evidence of the defendants and their witnesses did
61
not agree. Under these circumstances he was of
opinion that the probabilities were all in favour of
the plaintiff. Judgment weald therefore be for the
plaintiff for the full amount claimed with all the
oosts incurred both in the Oelony and in England.
BOOSE V. WOO DH BAD AND OTHERS.
Lihel — Damages — Company — Meeting of
shareholders — Directors' Report — Publica-
tion.
Mr. Juta and Mr. MoLaohlan for the plaintiff.
Mr.Schreiner and Mr. Graham for the defendants.
Thia was an action for libel, instituted by Mr.
Frederick Henry Boose', until recently secretary of
the Cape Town Stock Exchange and Investment
Company (Limited), against Mr. John Woodhead,
Mr. William F. Simkins, Mr. John Ross, Mr.
George Behr, Mr. Melt Roux, and Mr. John Scott,
directors of the above-named company. Damages
were laid at £500. It appeared, from the opening
statement of counsel, that on the 28th March, 1890,
a meeting of the directors and shareholders of the
Stock Exchange was held, and at this meeting a
certain report was read, and afterwards published
in the Cape Timet and Cape Argus. This report,
the plaintiff contended, contained the libel com-
plained of, the libellous words being to the follow-
ing effect : " Tour directors in taking this course
have not dismissed him (meaning the plaintiff)
principally upon the charges above referred to,
but consider that Mr. Boose', in dealing illegally
with the funds of the company, not only justified
them in taking this measure (meaning plaintiffs
dismissal aa secretary), but they have instructed
their solicitor to place the papers in the hands of
the Attorney-General, from whom they expect to
hear daily."
The defendants admitted the publication com-
plained of, but pleaded that the occasion was
privileged, that the publication was made without
malice, and in the bona fide discharge of their
duties as directors, that it did not bear the con-
struction put upon it by the plaintiff, and that it
was true in substance and in fact.
Frederick Henry Boose', the plaintiff, examined
by Mr. Juta, stated that he was the promoter of
the Stock Exchange, and as such the directors
voted him a salary of £600 per annum, and 100
fully-paid-up negotiable shares of the company.
The Exchange was carried on in 1889 and 1890,
having been started in February, 1889. In the
early part of 1890 certain complaints were made
against witness by Messrs. Scott & Armstrong, and
the matter came to the notice of the directors.
Mr. Schreiner here asked the ruling of the Court
as to alleged charges made against the plaintiff,
other than the alleged libel complained of.
Mr. Juta said he should refer to them for the
purpose of proving malice. *
The Court ruled the evidence to be admissible
and intimated that Mr. Schreiner could bring
refuting evidence.
Witness (proceeding) said a resolution was passed
calling upon him to withdraw certain statement
respecting Messrs. Soett & Armstrong, and stating
that the directors exonerated him from intent to
damage the interest of the oompany or anyone.
Mr. Schreiner pointed out that there was a
record on the minutes that the plaintiff did
apologise and retract.
Witness said he received no negotiable shares,
although he was given 100 reserves. The share-
holders, however, objected, and he returned them
in March, 1890. The account book of the oom-
pany was here produced, and witness said he had
kept the boek Early in January, 1890, about the
time of the annual meeting, a resolution was
passed by which it was proposed to give him a
"good-for" for 100 shares, equivalent to those
voted him on the formation ef the company. He
did not get the " good-for," but got 100 negotiable
shares in the oompany, whioh, aB he had stated, he
afterwards returned. He accepted them under
protest, as he should have had them earlier. They
were worth nothing practically when hegot them.
In February, 1889, they were worth £1 eaoh, and
went up afterwards to 67s. 6d.
Mr. Juta remarked that he might simplify the
case by stating that the whole case turned upon
the fact that plaintiff drew money against the
value of the shares he was about to reoeive, and
posted it in the books, and it was upon this
action that the directors based their allegations.
Plaintiff's contention waB of course that he should
have had the shares earlier.
Witness (preceeding) said that the oompany
was financed as best it could be, because it had no
funds. The account at the bank was overdrawn
by £1,800 in October, 1889. They could overdraw
to that amount. Witness therefore had to finance
the business out of the bar takings and the sub-
letting of Renter's cables. The £5,000 of the
paid-np capital was lost in speculation. The
directors over-speculated.
The Chief Justice: Who was the company's
speculator ?
Witness: Mr. Melt Roux, my lord. (Laughter).
But for witness's management the company would
have gone into liquidation long ago. The Invest-
ment Branch was a subsidiary oompany, the
directors of which were also the directors of the
Steck Exchange. (Laughter). They used to
borrow from the subsidiary oompany. On
Deoember 14, 1889, his account of £100 or 100
shares, after having been transferred from one
account to another, was put on the profit and loss
account. This was done by witness^
62
The Chief Justice : Did yon get the money ?
Witness: I got £90.
The Chief Justice : And the remaining £10 ?
Witness : That is still standing to my oredit.
(Laughter).
The Chief Justice : Did they know yon had the
£90?
Witness : I did'nt consider it necessary to tell
them.
Mr. Justice Buchanan : Where did you get it
from?
Witness : Out of the takings.
Mr. Justice Buchanan : Not by oheque ?
Witness: We oouldn't draw a cheque.
(Laughter.)
Mr. Justice Smith : In point of fact, all debts
were paid eut of the takings of the bar ?
Witness: We satisfactorily sub-let our cable.
The business was conducted on cash principle* as
regarded receipts and payments after the over-
draft had been made.
Mr. Schreiner : Not much payment.
Witness (continuing) said Messrs. Eilenberg A
Boalch made oertain charges against him, not
connected with money matters, but respecting his
fidelity as secretary to the company.
Mr. Schreiner again raised the question of the
admissibility of other charges than the alleged.
Mr. Juta said he should prove by them that there
was malice. In point of fact, the directors wanted
to get rid of plaintiff, and appoint someone else .
The correspondence was then put in, from which
it appeared that the charges were that plaintiff
had attempted to establish another Exchange
whilst he was secretary of the company, had soli-
cited support from the shareholders, and had
generally falsely represented the finanoial position
of the company, and tried to damage its credit.
Witness produced the scrip of the shares
acoepted by him under protest. They were value-
less. He was suspended on Maroh 6, 1890. Sub-
sequently he received a letter making a charge of
fraud and dishonesty, and calling upon him to
refund the money, to which he replied requesting
an adjustment of the account between them in
respect of the shares, and asking for certain in-
formation from the books, without which he could
not reply in full. Extracts were supplied him
after the shareholders' meeting on the 28th Maroh,
1890. About this time he was not on friendly
terms with Messrs. Scott & Roux on aocount of
what he considered their underhand dealings as
regarded the company and dealings in shares. The
result of the slanders upon his character had had
the effect of keeping him out of permanent
employment.
Cross-examined by Mr. Schreiner : At present
witness was in the employ of Mr. Du Preez.
Would not say that entries of receipts and pay-
ments were made at once. The books were posted
every week. The entry of £90 was made early in
February. The money was drawn in January.
The books had never been out of the possession of
the company. The slip of paper produced related
to the £90. The auditors did not take the books
away. On the 27th January, 1890, the auditors
did not question the item of £100 credited to
witness. Mr. Lippert knew he had withdrawn
£90, but no one else knew until he told Mr. Ross.
He did not beg Mr. Ross not to mention it, nor
did he ask him to lend him £90 to make it up. He
made no reference to getting value for his shares
for ten months. Mr. Schreiner was proceeding to
cross-examine witness upon the accounts, when.
The Chief Justice asked if he were going to
prove want of malice ?
Mr. Schreiner : It is proved that there was every
reason to come to the conclusion that Boosts con-
duct required the censure put into the report.
The Chief Justice thought that or the plaintiff's
own evidence there was no proof of malice. The
communication was privileged, and the only
question that had to be decided was whether the
publication in the newspapers was by the order of
the defendants, or if it were, whether there was
malice or not ? He was somewhat surprised at
Mr. Juta going into such details as he had. He
should have thought he would only have proved
the libel. There was no plea of justification.
Mr. Justice Smith : You want to prove that this
gentleman drew £90 without authority, and that
is proved over and over again.
Cross-examination continued : The £96 was
shown by him on a certain, account to be £40 for
salary and £50 for shares, although he admitted
that when he was suspended nothing was due to
him for salary. —
Mr. John Henry Blenkin stated that he was a
reporter on the staff of the Cape Argus. He re-
membered attending the meeting of the 28th
March, when he was informed that it was private,
and that reporters would not be admitted. He
was subsequently sent for, but he did not bear the
report read. The report was handed to him by
either Mr. Woodhead or Mr. Twycross, and was
afterwards published.
Mr. Cornelius Bartholomew, a reporter on the
staff of the Cape Times, corroborated the evidence
of the last witness.
Mr. P. O'Dowd stated that in his opinion the
directors were opposed to the publication of the
report.
Mr. Henry J. C. Ross stated that he would have
taken the plaintiff into partnership were it not for
the publication of the report.
The Chief Justice : Has the plaintiff suffered
much loss by your not having taken him into
partnership ?
The witness, after some hesitation, stated that
he had.
63
Mr. Schremer then submitted that the news-
paper*, and not the directors, were liable for the
libel.
The Chief Justice obserred that it was open to
them to object at the meeting to the publication
of the report, and they did not do so. He further
remarked that, nnder any circumstances, the
plaintiff could only recover nominal damages, as
the libel had been sufficiently published before it
get into the newspapers.
Mr. B. R. Syf ret having given evidence as to
the auditing of the company's books,
Mr. Sohreiner called Mr. John Rosb, one of the
directors, who detailed the circumstances under
which the company was established, and gave the
substance of a conversation which had taken place
between himself and the plaintiff relative to the
£90. Witness was positive that plaintiff had
asked him not to mention the £90 transaction, and
that he (plaintiff) had asked witness for a loan of
£90 to replace the money which he had taken.
The other directors having been examined, and
counsel having addressed the Court,
The Chief Justice remarked that it was evident
the plaintiff had sustained no damage by the
publication of the report. But even if he had
suffered damage, judgment could only be given
against the director who had authorised the
publication of the report. There was evidence
that Mr. Woodhead had handed the report to one
of the reporters. Judgment would be for the
plaintiff against the first-named defendant for one
»*"""»g damages, each side to pay its own costs.
STJPREME COURT.
SATURDAY, FEBRUARY 28.
[Before the Chief Justice (Sir J. H. DE
VILLIERS), Mr. Justice Smith, and Mr.
Justice Buchanan.]
BOOSE V. WOODHEAD AND OTHERS.
The Chief Jnstice said there must be some
addition to the judgment which was given yesterday
against Mr. Woodhead for a shilling, each party to
pay his own costs. There must be some jadgment
in regard te the other defendants, and it would be
of " absolution from the instance," but the rest of
the order would of course stand, namely, that each
party pay his own costs. The judgment was some-
what hurriedly given, and he wished to make it
perfectly clear that the reason why the other
defendants were absolved was this : It was really
a meeting of shareholders that was held, and a
majority of shareholders decided to admit re-
porters, and so far as the proceedings were con-
oernjd which took place at the meeting, he believed
that all the directors would be liable, because they,
knowing that it had b6en decided to be public,
ought to have ebjeoted to the report being read.
But the charge in the declaration was not publica-
tion at that meeting but in the Argun and Times,
and in respect of the publication in those news-
papers the evidence showed that the chairman of
the shareholders' meeting was the gentleman who
handed it over to the reporters, and the remaining
directors were not responsible.
IK BE SCHEEPEBS.
Clerk articled to Attorney — Application for
admission refused, applicant not having
passed the whole of his time under the
immediate supervision of his principal.
Mr. Sohreiner moved for the admission of Mr.
Jacobus Johannes Scheepers as an attorney-at-law.
It appeared from an affidavit read that the
applicant was duly articled to Mr. Attorney Van
Heerden, of Burghersdorp, in January, 1888, and
that he had served for the period required with
the exception of four months, during which time
he had managed Mr. Van Heerden's business at
Venterstad.
Mr. Schreiner asked that the period spent at
Venterstad by the applicant might be included in
that passed in Burghersdorp under his principal's
more immediate supervision.
Mr. Searle, who appeared for the Incorporated
Law Society, did not offer serious opposition, but
remarked that the society did not like oases of
this kind to be afterwards quoted as precedents.
The Chief Justioe said that if they granted this
application it would certainly form a precedent.
The Court suggested that the applicant had
better complete his service with Mr. Van Heerden
at Burghersdorp.
DANIEL H. W. WESSELS V. JOHANNES BASSON.
On the application of Mr. Graham, provisional
sentence was granted for the sum of £200, with
interest from the 18th July, 1890.
TRUSTEE ZULU BISHOPRIC FUND Y. GEBT H.
J. KRUGER.
Mr. Maskew moved for provisional sentence on
a mortgage bond for £680, with interest from 1884.
Provisional sentence granted, and property
declared executable.
FBANCIS J. WEB8TEB V. MABY AND HENBT
SOLOMON.
On the motion of Mr. Searle, provisional
sentence was granted for £280 6s. 8d., balance of
rent due.
« ; i
64
OMABURU GOLD-MINING AND EXPLORATION
COMPANY V. ISIDORE HIR6CH.
On the application of Mr. Shiel, previsions!
judgment was granted for £82 10s., and interest
a tempore mora, being the amount of six unpaid
calls on 110 p referent shares in the above company.
JOHAN VAN B. OA88LER V. POPPE. BUS80UW
AND CO.
On the motion of Mr. Molteno, provisional
judgment was granted in terms of consent.
ASSIGNEES MTBUBGH AND CO. V. EX ESTATE
J. P. DU TOIT.
On the application of Mr. Juta, order for seques-
tration was granted.
F. C. GEBICEE V. JOHAN C. G. H. LAMPRECHT.
Postponed until 12th March on the application
of Mr. Juta.
REHABILITATIONS.
On motion from the Bar the rehabilitation of
the following insolvents was granted: Pieter
Johannes Marais, David Roux, Albertus Petrus
Bernhardus van Niekerk, and Walter Moorcroft
Edwards.
GENERAL MOTIONS.
DUNA V. SABENKOLA AND ANOTHER.
Ordered to stand over until Monday.
IN THE MATTER OF THE MINOB JOHANNES
A. BOTHA.
On the motion of Mr. Schreiner, an order ef
Court was granted in terms of the Master's report,
and permission was given fer the sale and transfer
to the minor of certain landed property called
Vrendenberg, situated in the district of Fraser-
burg.
PETITION OF MARGARETHA A. RICHARDS.
Mr. Tredgold moved, on behalf of applicant, for
leave to sue in forma pauperis in an action to
be instituted by her for restitution of conjugal
rights.
Matter referred to counsel for his certificate.
PETITION OF ANNA J. FOURIE.
Mr. Molteno moved to make absolute the rule
nisi authorising the payment to petitioner of a
sum of money, awarded to hsr husband out of the
estate of his late father.
Order granted ; money to be paid personally to
applicant, and costs to be paid out of husband's
■hare of the estate.
IN BE THE MINOR EBDIN KEMPER.
Mr. Juta moved for authority to the Master to
continue certain quarterly payments towards the
maintenance and education of the minor out of the
funds devolving upon him from the estate of his
grandparents. Counsel stated that the minor went
Home some time age te study mining. He had
£15 per quarter out of a sum of money which
became exhausted. Since then £100 had been
placed to his credit, out of which payments would
be continued.
The Court granted the order.
IN THE MATTEB OF THE UNION BANK, IN
LIQUIDATION.
On the application of Mr. Schreiner, certain com-
promises submitted to the Court with the liquida-
tors' petition were confirmed.
THE UNION BANK, (IN LIQUIDATION,) IN
THE ESTATE OF THE LATE F. W. HOFMEYB.
Company— Bank in liquidation — Contribu-
tories — Deceased shareholder — Mutual
will — Part n ership — Condictxo indebiti — It
is not safe or proper for an executrix to
pay to herself as surviving spouse any
portion of the common estate until her
husband's shares in an unlimited company
have been transferred or the liability
entailed by their retention has been ascer-
tained and provided for.
Mr. Schreiner moved for authority to the official
liquidators of the above bank to place upon the
list ef contributories in respect of thirty shares
registered in the name of the said estate the name
of the widow, now married to one Kiver.
Sir T. Upington, Q.C., opposed the motion on
the grounds that Mrs. Kiver had never been a
shareholder in the bank, and contended that as
the community which had existed between
herself and her late husband was dissolved, upon
his death ; she could not be held liable for debts
which had not accrued prior to the date of
dissolution. The shares after the liquidation
remained in the estate of late F. W. Hofmeyr, and
the liquidators could have no remedy against the
widow, except in action for damages.
Mr. Schreiner, on the other hand, contended
that the widow was as much a holder of the shares
as her late husband, and was consequently liable
in solidum.
After hearing the argument, the Chief Justice
intimated that the Court would take time to
oonsider their judgment.
Postea (March 12.)
65
The Chief Justice delivered the following
judgment : The late F. W. Hofmeyr was
the registered owner of thirty shares in the
Union Bank. By the mutual will of himself and
his wife, to whom he was married in community of
property, the survivor and the children of the
marriage were appointed heirs of the first dying,
with liberty to the survivor to retain the minor
children's inheritance under his or her administra-
tion. The testator died in 1881, leaving
a minor child, Petronella, the issue of the
marriage. The survivor, as executrix, there-
after filed an account of her administra-
tion, by which she awarded to herself the sum of
£1,547 9b. 9d., being a moiety of the estate and a
child's portion, and the sum of £773 14s. 10d.,
being one-fourth of the net assets, to her child.
On the account there is a note to the effect that
" thirty Union Bank shares are at present unsale-
able," and the shares still stand registered in
F. W. Hofmeyr's name. The bank having been
ordered to be wound up in 1890, the applicants ,
ss liquidators, placed the estate of Hofmeyr
npon the list of contributories, but, as there are
no assets remaining in the estate, nothing has
been awarded to them. They now apply for an
order placing the name of Mrs. Hofmeyr, who has
since married Mr. Kiver, upon the list of con-
tributories for the full amount of the calls, and
directing the payment to the liquidators of the
one-fourth share of Hofmeyr's estate, which has
been awarded to the daughter, but which is
still under the administration of Mrs. Kiver. It
has been decided by this Court in the case of
Torbet v. Executors of Attwell (Buch. 1879, p 195),
that, under our law, differing in this respect from
the Roman law, the death ef ene of two or
mere partners does not dissolve the partnership
when the contract of partnership provides for itB
continuation for the benefit of the estate of the
deceased partner. It is obvious that joint-stock
companies, consisting, as they generally de, of a
great number of shareholders would never be
formed if the death of one of the shareholders
were to put an end to the concern. The deed of
settlement generally provides for the case of the
death of any shareholder, and even where such
provision does not exist, the test ef owner-
ship of shares, and therefore of partner-
ship in the concern, is always registration
of the name of the owner on the list of
shareholders. The seventh article of the deed
of settlement of the Union Bank recognises the
light of an executor to hold, in that capacity, the
shares of a deceased person whose estate he has
been appointed to administer, and the 18th and
15th articles make the registration of shares in
the name ef the owners the test as to the rights
ud liabilities of ownership. To the contract
embodied in these articles the late Hofmeyr
became a party when he became the duly-
registered holder of the thirty shares now in ques-
tion. He must be taken to have agreed that
until the shares should be transferred to some-
one else he or his estate should continue in
the partnership with all the rights, and subject
to all the liabilities which such a continuation
would involve. Creditors dealing with the bank
after his death were entitled to regard his
estate as liable for the debts and engagements
of the bank, and were justified in giving credit
to the bank upon the faith of his estate being sub-
ject to all the liabilities of shareholders. Upon
the winding up of the bank the liquidators were
justified in placing his estate, as represented by his
executrix, upon the list of contributories, and if
she had any assets left in her hands there can be
no doubt as to the right of the liquidators to share
in those assets for the payment of the calls which
the Court has authorised. The first respondent,
however, had already, before the winding up com-
menced, distributed the assets of Hofmeyr's estate
of which she was the executrix. One-half of the
net assets had been awarded to her in right
of her marriage in community to him,
and the other half had been equally
divided between her and her daughter, the
second respondent, as being the testamentary
heirs of the deceased. Her rights and liabilities
as surviving spouse must be considered separately
from the rights and liabilities of herself and
daughter as testamentary heirs. Until the com-
munity of property between Hofmeyr and his wife
was dissolved by his death he had the sole adminis-
tration of the common estate, and upon his death
that common estate was liable for all debts
incurred by him before and during the
marriage. The applicants seek to make the first
respondent liable as contributory for the full
amount of the calls on the thirty shares, but it
is clear that, as the shares have never been
transferred to her, she cannot be held liable,
in her individual capacity, as a contributory.
The more difficult question is, whether she is
liable to the creditors ef the estate for a greater
sum than she has actually received as surviving
spouse. It may fairly be urged on behalf
of the liquidators that the oause of the ultimate
debt originated during the subsistence of the
community, and that therefore she remains liable
for one-half of that debt, although it was really
incurred after the dissolution of the community.
According to Voet (28, 2, 84), "it is sufficient, in
order to oreate a community of profit and loss by
virtue of the marriage in community, that the
cause of the profit or loss has originated
before or during the subsistence of the
marriage, although the profit or loss, as the case
may be, should only accrue after the dissolution
of the marriage." Upon this principle the
64
first respondent was fairly entitled, aB against
the heirs of the deceased, to receive, as she did
receive, one-half of the dividends on the thirty
shares, but upon the same principle she cannot, as
between herself and the heirs, evade liability for
one-half of the loss occasioned by the failure of the
bank. The question is, whatever may be the rights
of the heirs in the coarse of administration,
whether the creditors of the estate have any claim
beyond the common estate of Hofmeyr and his
wife ? In the case of Brink v. Louw (1 Menzies
210) the husband had, during the community,
entered into a suretyship for which he became
liable, and had afterwards surrendered his estate
as insolvent, and it was held that his surviving
spouse, not having repudiated her interest in the
oommon estate, oould be sued for half the amount
of the suretyship debt. She had received
nothing out of the common estate, and yet
was held liable for one-half of the debts incurred
by her husband. But the debt was not, as in the
present case, unascertained and contingent at the
time of her husband's death, nor was his liability
dependent upon registration in his name. In the
present case the shares were never registered in the
first respondent's name, and the creditors, there-
fere, had no recourse against her individually as
shareholder. Their recourse was enly against the
common estate, whioh, at the time of Hofmeyr's
death, was under his administration, and was
liable to the payment of his debts. On the other
hand, until those debts, whether payable in prastnti
or in futuro, were satisfied, his surviving spouse
had no just or valid claim against the oommon
estate for her half -share of the net assets of the
community. It was not, therefore, safe or proper
for her, as executrix, to pay to herself as surviving
spouse any portion of the common estate until her
husband's shares in an unlimited banking oom-
pany had been transferred, or the liability
entailed by their retention had been ascertained.
These shares having been acquired by her hus-
band during the subsistence of the community,
it was impossible to say what the value of the
oommon estate was, so long as the shares re-
mained in his name. The event proved that the
estate was valueless. She might have prevented
the deterioration of the estate by realising the
shares, and this indeed it was her duty as execu-
trix to do. There is a note on the account that
at the date when it was framed the shares were
unsaleable, but there is no statement on oath
from her or anyone else that they oould not have
been sold between the date of the husband's death
and the winding-up order. Primafacie, therefore,
it would appear that she had no just or valid claim
against the oommon estate as surviving spouse, and
that she was not justified, knowing as she did that
the shares remained unsold, in awarding to herself
any portion of that estate. The first respondent is
also one of the testamentary heirs of her husband,
and in this respect she stands on the same footing
as her daughter. As heirs they have received their
moiety of the common estate. That moiety,
however, could not be ascertained so long
as the shares remained unsold and
untransf erred, and the executrix ought
not to have paid it out to herself and her
daughter, as heirs, until the continuing liability of
the estate had been satisfied. The next question
is, what remedy is open to the liquidators ? I have
already remarked that the first respondent cannot
be placed on the list of oontributories in her
individual capacity, and we are not asked to place
the second respondent on the list. The first
respondent has already been placed on the list in
her capacity as executrix, so that the liquidator*
are judgment creditors of the estate for
the amount of the call, namely, £4,500.
Her answer to the application for judg-
ment is that she has fully administered the
estate, and that she has ne assets as executrix to
meet the call. In view of the order which I pro-
pose to be made it would not be expedient for the
Court to state definitely at this stage whether the
answer is sufficient or not ; but I am clearly of
opinion, for the reasons already given, that there
are sufficient grounds for calling upon her to show
cause why she shall not be ordered to pay the
sums awarded to herself and her daughter de
bonis propriis. In making no order against the
first respondent as surviving spouse, and against her
and the second respondent as heirs, I do not wish to
be understood as holding that they are not liable
to refund at the suit of the liquidators. They
cannot be placed upon the list of oontributories
in their individual capacity, but if they are
liable to refund at the suit of the executrix,
there is authority for holding that they are subject
to the same liability at the suit of the creditors of
the estate. Voet (12, 6, 10) points out several
instances in which the condictio indebiti may be
instituted by persons other than those by whom or
in whose name the payment had been made. He
says, for example, that if the tutor of a minor has
paid some of the creditors in full, and it is after-
wards discovered that the estate is insufficient to
pay all the creditors, the unpaid creditors may pro-
oeed against those who have been paid for a re-
fund of a proportionate share. The proviso of the
82nd section of Ordinance 104 impliedly recognises
the general right of unpaid creditors of the estate
of a deceased person to sue a oreditor who has been
improperly paid, although it takes away that right
where such unpaid creditors have failed to lodge
their claims with the executor in due time.
That proviso does not, in my opinion, affect the
question whether or not creditors may recover resti-
tution from heirs or legatees, or even from persons
who have been paid as creditors, but had not, in
67
the language of the ordinance, any " just and valid
elsims against the estate." Such restitution, how-
ever, should be sought by action, and not by motion.
The present application, in the form in which it
hat been made, must be refused, but as the first
respondent's name has been properly placed on the
lilt ef contributeries, in her capacity as executrix,
the Court will grant a rule nut, calling upon her to
•how cause on the last day of next term why she
•hall not be ordered to pay de bonis propriis in
respect of the calls made on the thirty shares, the
rams paid by her as executrix to herself as sur-
viving spouse, and to herself and her daughter as
testamentary heirs, and te pay the costs of this
application.
MOBTON V. MOETON.
This was an action for divorce, instituted by the
plaintiff, the husband, by reason of his wife's
adultery.
Mr. Giddy, who appeared for the plaintiff, read
the evidence which had been taken on commission
in England.
The Court, after having heard the evidence,
granted the de>cree ef divorce as prayed for.
PETERS V. PETERS.
On the application of Mr. Jones, this case was
allowed to stand over till the 12th March.
HZYDENBYCH V. SALOMON & MCLOUGHLIN.
Debt — Judgment — Stay of execution — Re-
fusal of Magistrate to take evidence as to
ability of defendants to pay more than
amount tendered. Appeal — Judgment
amended by striking out stay of execution.
Leave given to Respondents to produce
further evidence.
On appeal from the Resident Magistrate of Cape
Town Mr. Graham appeared for the appellant
(the plaintiff in the Court below). This was an
appeal from the judgment of the Resident Magis-
itrat of Cape Town. The respondents (the
defendants in the Court below) had admitted the
debt — £48, and judgment was given against them,
hut execution stayed on their paying £1 a month,
the Magistrate refusing to take evidence as to the
ability of the respondents to pay more than £1 a
month. — Mr. Graham contended that the Magis-
trate was not justified in rejecting evidence en the
point submitted ; that the case was on .all fours
with that of u he Roux v. Hofmeister "J (heard in
the Supreme Court on the 2nd December, 1890),
and prayed that it might be remitted.
Mr. Justice Buchanan : What is the use of remit-
ting the case ? The Magistrate may take further
evidence and confirm his judgment.
Mr. Graham : We can produce evidenoe to show
that the respondents can pay more than £1 a
month.
The Court amended the judgment of the
Resident Magistrate by striking out the stay of
execution. Leave would, however, be given to the
defendants to produce evidence of their inability
to pay more than £1 a month. Costs were given.
SUPREME COURT.
MONDAY, MARCH 2.
[Before the Chief Justice(Sir J.H. DE VlLUEBS)
and Mr. Justice SMITH.]
HETDENBTCH V. LANGEBMANN.
Debts due to insolvent estate — Purchase of
right to recover same — Partnership — Final
statement of accounts.
Mr. Schreiner and Mr. Molteno for the plaintiff .
Mr. Searle and Mr. Graham for the defendant.
This was an action instituted by the plaintiff
(Mr. Benjamin G. Heydenrych) against Mr. P. J,
B. L anger mann for the recovery ef certain sums
of money, amounting in all to £93 18s. 8d., alleged
to be due by the defendant to the insolvent estate
of H. P. du Preez, and the right to recover which
had been bought by the plaintiff. It appeared from
the opening statement of counsel that in April,
1882, an agreement was entered into between Mr.
H. P. du Preez, Mr. 0. M. de Wet and the defendant,
by which the latter in consideration of his
advanoing the sum of £800 was to receive a fourth
share of the net profits of the business. Disagree-
ments appear to have arisen between Du Preez
and the defendant, and in Oetober, 1883, the
defendant left the business, he receiving as his
share £1,800, £800 in cash and bills extending over
two years for the balance. According to plaintiff's
statement, at the time defendant left the business
of Du Preez he (defendant) had not accounted for
certain sums of money which he had received, or
which had been paid on his account ; amongst
these was a claim the firm had against one
Lombard, of Malmesbury, for £72 3s. 6d., in full
discharge of which defendant had accepted a share
in the Malmesbury Board of Executors, but had
not debited himself with the £72 3s. 6d. The
defendant in his plea alleged that he had taken
the share in the Malmesbury Board of Executors
68
with the full knowledge and ooment of Da Preez
and that the settlement under which he received
£1,800 was final, and operated as a mutual release
between the parties. Upon these facts issue was
joined.
Mr. H. P.du Preez, examined by Mr. Schreiner,
stated that in April, 1882, he engaged Mr. Langer-
mann as financial clerk, but in consideration of bis
putting £800 into the business he waB to receive a
fourth of the net profits. Subsequently he had
disagreements with the defendant, and the latter
left the business on receiving £1,800. Witness
had no knowledge whatever of the transaction
with Lombard, and when defendant left the
business he (witness) was under the impression
that Lombard's account was still owing.
Gross-examined by Mr. Searle : lie was anxious
to get rid of Mr. Langermann, as he found that he
(Langermann) was in the habit of speaking too
much to outsiders about the affairs of the business.
On 6th October, 1883, Mr. Louw advanced £1,500
to pay off Langermann It was not till witness
had returned from England in April, 1886, that he
became aware of the transaction with Lombard.
He believed that Langermann had acted bona Jide
over the Lombard transaction, but he had failed
to debit himBelf .
Mr. Benjamin G. Heydenryoh, the plaintiff,
examined by Mr. Schreiner, stated that he had
bought the claims now sued on, at an auction held
by Mr. Gauvin. Some of the debts had already
been ceded to him, and he was second mortgagee
of others, so that he was obliged to buy them to
protect himself. He had liquidated Du Preez's
business, and the affair of the Morganson Syndicate
were chiefly in his hands.
In answer to the Court, witness said that he had
bought the debts for £11 lis., and had only re-
covered some £2 odd.
Mr. J. R. Lancaster stated that he had a desk in
Mr. Du Preez's office in 1881 and 1882. After Mr.
Herron (the bookkeeper) became ill, he rendered
some assistance in keeping the books. Langer-
mann's account appeared in the private ledger, but
he could find no trace of his being debited with
the share in the Malmesbury Board of Executors.
In answer to Mr. Justice Smith, the witness
stated it was not usual to have an ordinary clerk's
account in the private ledger.
Mr. F. J. B. Langermann, examined by Mr.
Searle, stated that the share in the Malmesbury
Board of Executors was transferred to him with
the full knowledge and consent of both Mr. Du
Preez and Mr. De Wet, and he (witness) was
nnder the impression that his account had been
debited with the amount. Since he had left the
business, Du Preez had never spoken to him of
any debts which he owed to Du Preez's estate.
Gross-examined by Mr. Schreiner : Witness had
■ever promised to contribute to any expenses in
connection with the Morganson Syndicate. Du
Preez had no authority to expend money on behalf
of the syndicate. He was of opinion that the
share in the Malmesbury Board of Executors was
handed to him by Mr. Du Preez. Witness could
not say if he had looked up his own account to see
how he stood, and did not remember £6 8s. being
paid for house duty on his account.
Re-examined by Mr. Searle : Witness thought
he W4B entitled to mere than he had received. He
was mainly induced to enter the firm owing to a
statement of Mr. Herron that the profits during
the preceding year had been £6,000.
Mr. T. J. Louw stated that in 1888 he entered
into partnership with Du Preez, and put £1,500
into the business to buy Langermann out. When
he had been about six months in the business he
ascertained that Langermann had not been paid.
Witness waB under the impression that he had
handed Lombard's share in the Malmesbury Board
of Executors to Du Preez. The share was then
worth £35.
J. 6. Mocke, examined, stated that he was one
of the Morganson Syndicate. He had never
authorised Mr. Du Preez to spend any money Ijon
behalf of the syndicate. He knew that Langer-
mann had spent money on the syndicate, and he
(witness) had spent about £1 10s.
Gross-examined by Mr. Schreiner : The specula-
tion had turned out successfully ; each member of
the syndicate got 680 shares when the company
had been floated, and he had sold 800 of bis shares
at a profit.
Mr. Sohreiner having addressed the Court,
The Chief Justice said that no rule was clearer
in our law than that the cessionary could have no
greater rights than the cedent. Had this action
been brought by Mr. Du Preez it would most
certainly have failed, and consequently the plaintiff
could be in no better position than Du Preez.
Fraud had not been pleaded, and in absence of
fraud he (the Chief Justice) was of opinion that
the settlement arrived at in October, 1888, was
final, and operated as a mutual release. With
regard to the amount charged in connection with
the syndicate there was not sufficient evidence that
Du Preez had any authority to inour expense en
that account. Under these circumstances, judg-
ment must be for the defendant with costs.
69
SUPREME COURT,
TUESDAY, MARCH 3.
[Before the Chief Justice (Sir J. H. DE
VlLLIKRS), and Mr. Justice SMITH.]
GBEEN AND CO. V. BEVEBIDGE.
Surety — Bond — Partnership — Where a
person has become surety for another
nnder a bond and renounced the " benencia''
nothing that such other person may have
done can affect the rights of the bond-
holder against the surety.
Mr. Searle (with whom was Mr. Webber) for
the plaintiffs.
Mr. Schreiner (with whom was Mr. Castens) for
the defendant.
This was an action instituted by B. K. Qreen &
Co. wine merchants, of Gape Town and elsewhere,
against Mr. Beveridge, of Kimberley, to recover
the sum of £200, under the following circum-
stances: On the 12th January, 1889, at Gape
Town, the defendant signed a written undertaking,
whereby he bound himself as Burety for the pay-
ment of a sum not exceeding £200, due from
William Aiton Briggs, for goods supplied by the
plaintiffs. In January, 1 889, on the faith of this
agreement, plaintiffs supplied liquors exceeding
£200, in value, and Briggs became liable. In
December, 1890, plaintiffs sued defendant on
provisional sentence, which was refused, plaintiffs
to go into the principal case, costs to be costs in
the cause. The plea was that the defendant was
sued for a portion of the price of wine and liquors
supplied to W. A. Briggs <fe Go., and not to W. A.
Briggs only ; that the defendant did not guarantee
the debts of the firm, but only the debts of W. A.
Briggs, and therefore that he was not liable for the
amount claimed; and generally, the defendant
pleaded that he only intended to guarantee the
individual debt of W. A. Briggs.
The Chief Justice : Is Briggs a member of the
firm?
Mr. Searle : Yes, but we say that Green knew
no one else but Briggs in the matter. Long
afterwards he did know that another gentleman
had seme interest in the business, after the goods
specified had been supplied.
Mr. Edward Knowles Green, the plaintiff,
stated that Briggs was formerly manager of his
Kimberley branch, and in 1888 proposed to start
business at Johannesburg, giving Beveridge as
security for £200. It was understood, for business
purposes, that he would trade as Briggs <fe Com-
pany, bat it was a fact that there was only Briggs
in the business,
The Ghief Justice : If the goods were supplied
to Briggs, the liability would remain. He might
call himself by any name.
Mr. Searle : An attempt will be made to show
that Briggs had a partner, whom he took in at
some other time.
Plaintiff, continuing, said that in May, 1889,
Briggs had a fire at Johannesburg. He never
told witness that he had a partner until later in
the year. In April, 1889, Briggs became insolvent,
and witness proved for £1,065 18s 3d.
Cross-examined : He admitted that in the corre-
spondence he addressed Briggs as Briggs & Go.
Mr. Briggs had greatly misled him, and he never
knew that Geddes was anything but a clerk in
Briggs's employ until the latter put him forward
m a partner.
Re-examined : He would not have supplied the
goods to the firm of Briggs & Geddes, although he
would and did to Briggs alone. His objection to
GeddeB was on personal grounds.
Mr. Edward Knowles Green, jun, produced the
accounts of the firm, and showed the amount due
by W. A. Briggs.
This closed the plaintiffs case.
Mr. Gastens read the evidence of Briggs, taken
on commission in Natal. He stated that Geddes
was his partner, and E. K. Green, sen., was well
acquainted with it.
For the defence
Mr. George Beveridge, general importer, of
Kimberley, stated that he signed the agreement
on the 12th January, 1889. He did not then know
that Briggs was going to trade in partnership, but
he ascertained so afterwards. Witness had no
financial interest in the business. Mr. Green
never told him that Briggs would carry on business
as Briggs <fe Go.
Gross-examined: He gave the security of his
name to Briggs alone. Brigge never said anything
about Geddes at first. When he heard Geddes
was in. partnership he concluded that his surety-
ship would be at an end, although he never
informed the plaintiff of his belief.
By the Court : He would not have taken Geddes's
liability.
This closed the defendant's case.
Without calling upon Mr. Searle for the plaintiff,
the Court gave judgment.
The Ghief Justice said the question whether
defendant was bound beyond the scope of his
engagement depended upon a further question of
fact whether the plaintiffs did or did not give
credit to Briggs alone. In his opinion all the
evidenoe tended to show that throughout the
plaintiffs depended upon the credit of BriggB only,
and that he did not know Geddes was to be a
partner. He was also satisfied that Beveridge did
not know that Geddes was to be a partner, and
that if he had, he would not have become surety.
70
What Briggs might do behind the back of the
plaintiffs, could not affect their rights under the
bond, and plaintiffs were entitled to judgment
with coats.
DUNA V. SABBNKOLA.
Non-jurisdiction and irregularity — Act 20 of
1856 — 190th rule of Court— •" Judicial
proceedings capable of being reviewed " —
Where a Resident Magistrate not in his
magisterial capacity but as " Head of the
District" had settled a dispute between
two natives, such a proceeding was held
not to be a judicial proceeding capable of
being reviewed within the 190th Rule of
Court.
Mr. Schreiner appeared for the applicant.
Mr. Giddy for the respondent Jenner, and Mr.
Juta for the respondent Sabenkola.
This was an application to show cause why an
action adjudicated upon by the Resident Magis-
trate of Glen Grey (Mr. Jenner) should not be
brought under review of the Supreme Court on
the grounds of irregularity and non-jurisdiction.
It appeared that Sabenkola laid a complaint
regarding a certain dam and watercourse alleged
to belong to him. The parties appeared before
the Magistrate, not in his capacity as Magistrate,
but as head of the district, and after hearing them
the Magistrate gave judgment for Sabenkola,
ousting him, as Duna alleged, out of possession of
the land. The matter was brought before the
Supreme Court on the grounds that the proceedings
were irregular, in that no Bummons was issued or
served on the applicant, and that the evidence was
not taken of either ; that the Magistrate refused
to admit material evidence, and that he had no
jurisdiction to determine the case under the Act
20 of 1866.
The Chief Justice gave judgment. He said that
in his opinion this was no case for review at all.
The 190th Rule of Court clearly referred to pro-
ceedings in an inferior Court of Justice, but the
present proceedings did not take place in any
Court at all. The Magistrate seemed to believe
himself head of the district, and when he had
performed his judical functions in the Periodical
Court, be then, in a private manner, called the
parties together, and settled the dispute. Either
it was in the nature of an arbitration, or it was
wholly null and void. It was not alleged on
behalf of the applicant that it was in the nature
of an arbitration, and that being so, the proceedings
were wholly null and void, and the applicant was
not aggrieved by the Magistrate's order. He was
no more bound to obey this so-called order than
he would have been bound if any private person
had made a similar order. In that respect the
oase dearly differed from the case in which a
magistrate gave a verbal notice to a witness to
appear whtn the witness did not appear, and he
was committed for contempt of Court. Clearly this
man was aggrieved, there being something to
appeal against there ; but in the present case the
plaintiff was not aggrieved in the least. He chose
to obey what he believed to be a judicial order,
but that was owing to his ignorance of the law.
If he had known his rights, he would have known
that he was not bound to obey the Magistrate's order.
Clearly it was not a case in which the particular
rule of Court was applicable. Probably the
applicant, even though he had given up occupation
of the land, might have his rights against the
Government er other parties, by action, to be re-
instated in the land which he gave up under the
belief that he was bound to give it up. In his
(the Chief Justice's) opinion, the proceeding was
not a judical proceeding capable of being reviewed
and the application must be refused with costs.
VAN HEEBDEN V. THE MUNICIPALITY OP
VICTORIA WEST.
Municipality — Municipal Regulations — Cesa-
pools — Where a Municipality has by its
regulations power to close cesspools it
cannot compel an inhabitant to empty and
close a cesspool situated on his land.
-Mr. Juta appeared for the appellant.
Mr. Giddy for the respondents, the Municipality
of Victoria West.
This was an appeal from the Resident Magis-
trate of Victoria West. The appellant was charged
by the Municipality with contravening section 41
of the Town Regulations in that on the 22nd
Deoember, 1890, he failed to close a oesBpool
(situated on his property, Erf 47), the same being
considered prejudicial to public health. Evidence
was taken and the appellant (then defendant) was
fined 5s., or ordered to be imprisoned for a day.
The Chief Justice remarked, as Mr. Juta was
proceeding to argue, that the prisoner had pleaded
guilty.
Mr. Juta : That must be a mistake, my Lord,
(Laughter.)
Mr. Giddy : No, it is not.
Mr. Juta : The whole of the evidence waB gone
into. There must be some mistake.
Mr. Giddy : No. The prisoner on being arraigned
pleaded guilty.
Mr. Juta : Well, I can't help what the Magistrate
sends up.
n
The Chief Justice : You mean you can't help
what your client chooses to send. (Laughter.)
Mr. Juta: Bat the curious thing is that the
evidence for the defence is called.
The Chief Justice: Is that a mistake, Mr.
Giddy?
Mr. Giddy : No, my Lord ; it was arranged that
he should plead guilty to not having closed his
cesspool on the command of the Council, and it
was by consent arranged that the evidence should
be evidence against certain other defendants, and
the whole point that now arises is whether this
regulation (41) is ultra vires or intra vires. Pro-
ceeding, Mr. Giddy quoted a case in which a man
charged with a Municipal offence pleaded guilty,
but was found not guilty on the ground that the
regulation was uUra vires.
The Chief Justice, after referring to the case,
said Mr. Giddy was unfortunate in having men-
tioned it as it was a strong point in favour of Mr.
Juta.
Mr. Giddy : I am sorry Mr. Juta did not quote
it then. (Laughter.)
The Chief Justice, in giving judgment, said he
regretted to have to come to the conclusion that the
Town Council and the Magistrate had somewhat
erred. If this 41st regulation was within the
powers of the Council, then the Council ought to
have closed the cesspool themselves. They ought
to have carried out their resolution to empty the
cesspool and then close it up, which power they
had. But instead of that they called on the owner
to empty and close it, but there was no regulation
authorising them to call on the owner to go to that
expense. In the present case the defendant was
charged with neglecting to dose the cesspool when
there was really no regulation compelling him to
do so. The 41st regulation certainly did not; it
only authorised the Town Council to do so, and
this objection was not taken in the Court below.
If costs had been asked for he should certainly not
have given them, because the only objection
taken in the lower Court was that the regulation
was ultra vires. The appellant had done nothing
in contravention of the 41st regulation, and the
sentence most be quashed.
BEGINA V. LOONTJE8.
Masters and Servants Act — Police Act —
Using abusive and obscene language —
Conviction quashed.
Mr. Justice Smith stated that this case had come
before him from a special justice of the peace at
Durbanville. The prisoner was charged with
having used abusive and obscene language on a
firm with intent to provoke a breach of the peace.
He sent the case back to the Magistrate to know
under what Act he had proceeded, and pointed out
to him that the Police Act only applied to the use
of abusive language in a publio plaoe. The
Magistrate returned the record, saying that
prisoner was charged under the Masters and
Servants Act. The only witness in reference to
the alleged offence stated that the accused was not
a servant at all, therefore the conviction must be
quashed. Regarding a person coming into
another's house, there was no remedy whatever,
exoept the intruder were told to leave the house,
and then, if he refused, he could be indicted under
the Police Act for trespass. But there was no
Act that he was aware of that provided for a
person coming into a house and using bad
language.
SUPREME COURT
(IN CHAMBERS).
TUESDAY, MARCH 10.
[Before Mr. Justice SMITH.]
IN THE INSOLVENT ESTATE OF HENRY HEATH.
Insolvency — Transfer of shares by insolvent.
Mr. Sohreiner, on behalf of the trustee, applied
for the appointment of a commission at Kimberley,
to examine Mr. Henry Lang and Mr. W. H.
Craven regarding the transfer, by the insolvent, of
100 shares in the De Beer's Consolidated Mines.
It appears that the insolvent, whose present
address is unknown, is the registered shareholder
of 112 shares in the Cape of Good Hope Bank, and
that shortly after his insolvency he disposed of the
100 shares which he held in the De Beer's Mines.
The object of the commission applied for was to
examine witnesses as to this latter transaction.
The Court granted the order, and appointed the
Resident Magistrate of Kimberley commissioner ;
a further application to be made should the
examination of other witnesses be considered
necessary.
THE PAARL BANK (IN LIQUIDATION) V. HUGO
AND OTHERS.
On the application of Mr. Graham, authority
was granted to the liquidators of the above bank
to issue execution against certain contributories in
respect of shares held by them in the said bank,
upon each of which a call of £260 has been made.
12
IN BE LUSCOMBE'S TRUBT FUND.
Trustees — Appointment of trustees by Chan
eery Division of High Court of Justice
(England) confirmed.
Mr. Graham moved for an order confirming or
recognising the appointment by the Chancery
Division ef the High Court of Justice of trustees
of the said fund, and authorising the payment
thereof by the present holders. The petitioners
were Mr. Charles Judge, broker, of Trinity
House-lane, Kingston-upon-Hull, Yorkshire, and
Mr. William Lusoombe, of Oldbro' Villa, Marl-
borough- avenue, in the same borough, trustees of
a sum of money made over by Henry Lusoombe,
who died in Cape Town in 1864, to the late Hon
William Porter. The latter died in 1880, without
having appointed a trustee, and the fund has
since been administered by the Colonial Orphan
Chamber.
The Court confirmed the appointment made by
the Chancery Division of the High Court of
Justice.
SUPREME COURT.
THURSDAY, MARCH 12.
[Before the Chief Justice (Sir J. H. DE V ILLIBBB),
and Mr. Justice SMITH].
UNION BANK (IN LIQUIDATION), V. WATSON'S
HEIBS.
Company — Bank in liquidation — Contri-
butories — Executors— Payment de bonis
propriis.
The Chief Justice mentioned that Mr.
Schreiner appeared in this case the other day,
and the Court was of opinion that the
principle which guided them to a decision in
Hofmeyr's case should also apply to Watson's.
Were the shares kept unsold by the executors
with the consent of the heirs ?
Mr. Schreiner said he had no information upon
the point.
The Chief Justice: As, against creditors
whom the liquidators represent, were the exe-
cutors of Watson's estate justified in paying
anything to the heirs ?
Mr. Schreiner : We say no.
The Chief Justice then intimated that the Court
was of opinion that a rule nwi, similar in its terms
to that in Hofmeyr's matter, should be granted,
returnable on the 18th of next month. The order
in detail was, calling on the executors to show
cause why they should not, failing sufficient fur-
ther assets in the estate, be ordered to pay de bonis
propriis the amount of the calls due in respect of
the shares standing in the name of Mr. Watson,
not exceeding, however, such sums as the executors
had paid out to the heirs and legatees. The execu-
tors would be justified in making payments to
creditors.
THE UNION BANK V. THOMPSON.
On the motion of Mr. Schreiner, provisional
sentence was granted on a promissory note for
£201.
HYLAND V. BBOWN.
On the application of Mr. Jones, the provisional
order for sequestration was discharged.
8TANDABD BANK V. POPPB, BU880UW AND CO #
On the motion of Mr. Graham, the final order
for sequestration of defendants' estate was
granted.
WIGHT V. JAMES BUTHEBFOOBD.
Mr. Sheil moved for provisional sentence for
£14 12s. 6d., interest on mortgage bond, and 14s.,
premium paid on policy of fire insurance in terms
of bond. — Provisional sentence granted.
VAN ZYL V. SCHWABTZ.
On the motion of Mr. Juta, provisional sentence
was granted on an acknowledgment of debt for
£86 2s.
GEBICKE V. LAMPBECHT.
On the application of Mr. Juta, a final order for
the sequestration of respondent's estate was
granted.
DABTEB Y. GBEATBACK.
On the motion of Mr. Jones, provisional sentence
was granted on a dishonoured cheque for
£21 18s. 6d., subject to the production of a certifi-
cate of presentation
BOTMA V. BOTMA.
Sale — Conditions — Payment by instalments —
Provisional sentence refused where period
within which first instalment was to have
been made had not expired.
Mr. Juta, for the applicant, moved for pro-
visional sentence on two conditions of sale (one of
which was in English and the other in Dutch) for
£1,000 and £950 respectively. It appears that the
conditions were signed on the 20th December, 1890,
73
and that the money was to be payable in three in-
stalments, the first payment to be within three
months after the signing of the conditions ; there
were further conditions that the respondent
inould either find sureties or pass a bond as
security for payment of the instalments.
Mr. Schreiner, who opposed the motion, con-
tended that no money was yet due, as the first
three months (within which period the first instal-
ment was to be paid) had not yet elapsed.
Provisional sentence refused with costs.
CAPE CENTRAL RAILWAYS V. JOHN WALKER.
Costs taxed of motion in High Court of
Justice — Provisional sentence— Where a
person brings two actions and is un-
successful in the first he must pay the
costs of the unsuccessful action before he
will be allowed to proceed with the second.
Mr. Schreiner moved for provisional sen-
tence on a sum of £271 7s 4d., taxed costs of a
motion made bv defendant in the High Court of
Jutice, against the official liquidator of the com-
pany in England (Mr. John Drew Behr), in
which the latter was respondent.
Mr. Juta, for the defendant, said he had no defence,
bat he asked for a stay of execution, pending an ac-
tion about to be brought by Mr. Walker againt the
official liquidator of the company in South Africa,
for a sum of nearly £100,000. Security would be
given.
The Chief Justice, in giving judgment, said it
would be quite against the practice of the Court if
stay of execution were ordered. The prinoiple
generally adopted was that where a person brought
two actions, and he was unsuccessf ul in the first,
he must first pay the costs before he was allowed
to proceed. The Court could not assume that Mr.
Walker would be successful in the action pending,
and in the meanwhile he must pay the costs of the
previous case. Provisional sentence would be
granted with costs.
HAMILTON BOBS AND CO. V. ISAAC SAUNDERS.
On the application of Mr. Jones, provisional
sentence was granted for £60 2s., being balance of
account.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Marthinus
WUhelmus Theunissen, Albertus Johannes du
Toit, Jose' Antonie Cabrita, and Julius Vogl.
I*
CBOZIEB V. CBOZIEB.
On the motion of Mr. Graham, the rule nisi was
made absolute dissolving the marriage subsisting
between the parties.
PETITION OF SOPHIA MCLEBOTH.
Sir Thomas Upington, Q.C, applied for the
appointment of a curator ad litem in proceedings
about to be instituted by petitioner to have her
husband declared of unsound mind and incapable
of managing his own affairs.
The Court granted the application, and appoin-
ted Mr. Sheil curator ad litem.
ESTATE LATE JOHN JAMIESON.
Will — Executors exempted from filing
accounts— Ordinance 104 — Notice — Where
a testator has exempted his executors
from filing the ordinary administration
accounts — Notice ought to be given to the
executors before calling upon them to
conform to the provisions of Ordinance
104.
Mr. Schreiner moved for an order requiring the
executors of the above estate to render to the
Master of the Supreme Court a complete inventory
and account of administration in terms of the
Ordinance No. 104.
The Chief Justice said that where a testator had
exempted his executors from filing an account
notice ought to be given to the executors by the
Master before any application could be made to
the Court. There would be no order, but notice
must be given to the executors.
THE CAPE OP GOOD HOPE BANK, (IN LIQUI-
DATION), V. EAST, BUNCIMAN AND OTHERS.
Company — Bank in liquidation — Compromise
— Former shareholders — Contributories —
Excusftion— Act 23 of 1861.
Where liquidators have entered into a com-
promise with a shareholder, and have not
availed themselves of the powers conferred
upon them by Act 23 of 1861, Section 13,
they cannot fall back upon former share-
holders who had bona fide transferred their
shares to the person with whom the
liquidators have compromised.
Qucerc — Whether past shareholders can be
placed upon the list of contributories
before all the assets of the bank have been
realized.
74
Sir Thomas Upington, Q.C , moved for leave to
issue execution asr ainst Messrs East, Runciman,
Stewart, and Stamper for the deficiency arising out
of a compromise entered into by the official liqui-
dators and one Frederick W. Mills in respect of
sixty- seven shares' in the said bank, of which the
respondents were former holders, or, in the alterna-
tive, to place the names of the respondents upon
the list of oontribntories. The affidavits of Mr
Harry Bolus, one of the liquidators, showed that,
even if all present shareholders paid up their
liability of £30 in full, there would still
be a deficiency. Frederick William Mills
owned seventy shares in the late bank,
the calls on which were £2,100. A com-
promise had been entered into, under which
he had paid £1,819 10s. 8d., leaving a deficiency of
£780 9s. 4d. Of these shares sixty- seven were
acquired by Mills from the above-named re-
spondents within two years of the order of the
winding up of the bank, and at a time when there
were certain debts existing, for the payment of
which their liability, it was urged, had not ceased.
This period was within two years. Mills having
reoeived twelve shares from East in 1888, eight
from Stewart in February, 1890, ferty-four from
Stamper in March, 1890, and the remaining three
from a Mr. Brasch, who some time since went to
Australia, and against whom no order was sought.
Mr. Schreiner read the affidavits of the respond-
ents, who generally denied the locus standi of the
applicants, and denied their liability, and that the
shareholders had to be fully excussed.
In the course of argument, Sir Thomas Uping-
ton said he could find nothing to support the view
that, where the Court had approved ef a com-
promise, it was anything more than an excursion
for the time being, and a compromise did not
amount to a complete exoneration of any other
person who would be liable.
The Chief Justice observed that the liquidators
now only represented creditors, and could these
creditors have sued past shareholders after having
made compromises with present shareholders ?
Sir Thomas Upington submitted they could.
The Chief Justice asked Mr. Schreiner
if he contended that there must be a realisation
of all assets before past shareholders could be
touched ?
Mr. Schreiner replied that there must be either
an actual realisation, or Bucb a realisation of
their actual value as the Court would take as con-
clusive.
The Chief Justice said the Court had already
decided in the Paarl Bank matter that the liqui-
dators represented the creditors, and as soon as the
winding-up took place no creditor had any claim
against past or present shareholders.
Sir Thomas Upington, in addressing the Court,
pointed out that the question was one of con-
siderable importance, because, as he was informed,
there were about seventy of these compromises
pending, and if it were decided that they released
the prior shareholders, it would cause a condition
of things that might be disastrous to many.
The Chief Justice, in giving judgment, remarked
that, in winding-up proceedings, the liquida-
tors represented the company and the creditors.
So far as they represented the company, they had
no claim against past shareholders. Under the
terms of the 20th clause of the trust deed, as between
the shareholders themselves, the present share-
holders had no olaim whatever against past share-
holders to compel them to contribute towards the
debts of the company, and the only principle upon
which the liquidators could have any claim against
past shareholders in the present case was on the
principle that they represented for certain pur-
poses the creditors of the company. Now the
liquidators, as representing the creditors, could
have no greater rights than the creditors them-
selves would have had at the time when the order
for the winding-up was made. If a creditor whose
debt existed before any shareholder transferred his
shares had sued such a shareholder, he would
have been bound to show . that there had been a
complete excussion against the present share-
holder before the past shareholder oould be held
liable. In the present case it appeared that Mills
had proposed a compromise, which had no
doubt been assented to by the Court, but
it was assented to on the assumption that
the liquidators had ascertained that it would be
wholly impossible to obtain more from him than
had been obtained by means of the compromise.
But that was an assumption that was not binding
on past shareholders who had transferred their
shares ; they were still liable to any benefits
which the 13th section of Act 23 of 1861 had
given to them. Regarding the 12th section, he
(the Chief Justice) desired to say there had already
been sufficient excussion of the company itself to
justify the liquidators to come on the present share-
holders, otherwise the order of Court could not have
been made placing present shareholders on
the list of contributones. The mere fact that the
bank had been put under the Winding-up Act
amounted, he thought, to an excussion for the
purposes of making present shareholders liable.
His lordship then read the terms of the 13th
seetion, and said that no words could be stronger ;
actual execution was required. He could very
well imagine there might be instances where
actual execution might not be required,
for the reason that what amounted te execution
had already been issued. If, for instance, Mills
had become insolvent, proof in his insolvent estate
would have been sufficient, for the simple reason
that the law did not autheiise further execution
I against a person's estate which had been placed
?5
under sequestration, except under circumstances
which he need not now mention, and which would
not apply here. But Mills was not insolvent ;
the liquidators had made a compromise
with him, and altogether he (the Chief Justice)
thought that former shareholders were now en-
titled to say " You cannot fall back on up, because
you have not made use of the privileges given you
under the 13th section." For this simple reason,
he was of opinion that the present application to
place the respondents on the list of contributories
ought to fail. At the same time he
thought they ought to go further, and in
his opinion certainly, even if there had been
no compromise with Mills, he would have held that
the application was at present premature. The
Court had not sufficient information to settle the
rights and liabilities of oontributories, and
until they had such information it was
impossible for them to place any past
shareholders on the list at all. The
Court ought to be satisfied, before placing
any past shareholders on the list, that it
was wholly impossible to obtain from the present
shareholders sufficient to pay the debts and lia-
bilities of the company. The Court knew from
information before them that the bank held a
large quantity of gold scrip for realisation, and
until that had been realised it was impassible to
say that the present shareholders would be unable to
satisfy all the liabilities, because by the realisation
of the scrip the liabilities might be reduced to
such an extent that the present shareholders
would be able to pay the whole of the liabilities.
In holding this view he (the Chief Justice) must
add that he could not agree with M r. Schrei ner
that the two years would continue to run in
favour of past sha reho lders. He waB inclined to
b ums: IKat ?s soon as the colli PaMjl WasHSIaced
nnder the operation of the Wind ing-up Act that
the two years would cease to run, j and the rights
of Bfiafeholders, past and present, must be looked
at as existing at the time that the winding-up
order was made. He mentioned this so that it
might not be supposed that, owing to any
length of time in realisation of the
assets, the past shareholders would on that account
be relieved from liability. The judgment of the
Court must be for the respondents with costs, the
application being refused.
THE COLONIAL ORPHAN CHAMBER V. MARNITZ.
Mr. Schreiner, for the applicants, moved to
make absolute the rule nisi restraining the re-
spondent from entering on certain land, the
property of applicants, known as Riet Valley,
situated in the division of Uniondale.
Sir T. Upington, Q.C., for the respondent,
opposed the motion.
After hearing the arguments of counsel the
Court suspended the operation of the rule, the
applicants to bring their action at as early a date
as possible.
VAN ZYL AND OTHERS V. DE BEER'8
EXECUTRIX.
This matter was ordered to stand over till Tues-
day next.
THE DUTCH REFORMED CHURCH, ADDERLEY-
BTREET, Y. THE REGISTRAR OF DEEDS AND
OTHERS.
Mr. Schreiner, who appeared for the Consistory
of the Dutoh Reformed Church, Adderley-street,
applied for an order requiring the cancellation in
the Debt Register of a certain bond for £800
registered as owing te the Board of Executors, of
Cape Town, by the Bree-street Dutch Reformed
Church, on the ground that no such debt was
owing by the paid Church.
Sir T. Upington, Q.C., on behalf of the
respondents, submitted that the only question
before the Court was that of the costs of the
application, as the bond had been paid off and the
applicants had sustained no injury by the mis-
description which had appeared in the Debt
Register.
The Registrar of Deeds having explained the
circumstances under which the entry had been
made, the Chief Justice said that the Court was
clearly of opinion that the applicants had not been
prejudiced in any way. Under these circum-
stances, the application must be refused with costs.
MEYER V. REISBERG.
On the application of Sir T. Upington, Q.C., the
rule nufi was made absolute interdicting the
respondent from removing reeds and grazing cattle
on the farm Kassehvlei, in the district of the
Cape, pending an action te be brought for eject-
ment, damages, and perpetual interdict.
Mr. MoLaohlan consented, and the rule was made
absolute with costs.
SUPREME COURT.
FRIDAY, MARCH 13.
[Before the Chief Justice (Sir J. H. DE VILLI ERs)
and Mr. Justice SMITH.]
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION) V. EAST, RUNCIMAN, AND OTHER8.
The Chief Justice said that with regard to the
above matter, which had been heard yesterday, ho
f6
wished to be clearly understood that the judgment
in that case proceeded solely upon the ground that,
by the compromise with Mills, the liquidators were
debarred from placing the respondents upon the
list of contributories, and that what else had been
said in that case should be regarded as obiter
dictum. He still thought that the application was
premature upon the information which had been
put before the Court, but the question whether
past shareholders could not be put upon the list of
contributories before all the assets had been
realised had not been decided and was still open for
argument, and the Court thought it would be well
if another case were brought before it in such a
shape that this latter point, as well as the question
of the two years, could be fully discussed and
decided*
THE UNION BANK, (IN LIQUIDATION.)
On the motion of Mr. Sohreiner, leave was
granted to issue execution against Philip H.
Brentnall in respect of calls due upon certain
twenty shares in the said bank.
LKVATTB V. LEVATTE AND HENDEBSON.
Divorce — Unstamped affidavits allowed to be
read.
Application to make absolute rule nisi per-
mitting applicant to sue in forma pauperis
refused, and rule discharged where it
appeared from affidavit that applicant had
realized joint estate and remained in
possession of proceeds.
Mr. McLachlan moved to make absolute the rule
nisi admitting the applicant to sue in forma paw-
peris in an action to be brought by him for divorce
and for damages.
Mr. She il, for the first-named respondent, applied
for discharge of the rule, and with permission of
the Court, read two affidavits (which had been
refused by the Registrar as not being stamped),
which set forth that the applicant had been in con-
stant employment at the Salt River works for the
past eleven years ; that he had realised the joint
estate of himself and his wife, and was in posses-
sion of the proceeds, and generally that he was in
a position to proceed with his action in the or-
dinary course.
The Court discharged the rule, but made no
order as to costs.
PETITION OF HABBIET PARKER.
Mr. Schreiner moved for the appointment of the
Griqualand West Board of Executors as curator
bonis in the estate of Mary Ann Hopkins, a person
of unsound mind. Mrs. Hopkins was recently de-
clared a lunatic, and the applicant was appointed
curator, but being unable to procure the necessary
security the present application was made.
The Court appointed Mr. Francis Joseph
Gardner, secretary of the Griqualand West Board
of Executors, Kimberley, as curator bonis, costs to
come out of the estate.
THE PETITION OP MART ANN LOYDEN.
Mr. Shiel, on behalf of the petitioner, moved for
leave to sue in forma pauperis in an action to be
instituted by her against her husband for restitu-
tion of conjugal rights, failing whioh for divorce.
Referred to counsel for his certificate.
IN THE ESTATE OP THE LATE JOHN SPIBO
MASTERS.
Will — Landed Property — Executor dative,
Debts due by estate.
Where under a will the sale of landed
property had been prohibited the Court
refused to empower an executor to sell the
property to meet existing claims until
satisfied that sufficient money for that
purpose could not be raised by way of
mortgage.
Mr. Schreiner moved for authority to Mr. W. A*
Currey, the executor dative, to sell the landed
property in the estate for the purpose of satisfying
debts and maternal inheritance.
It appears that Mr. Masters died last year. By
the terms of his will, the landed property in the
estate, which consists ef three lots of ground with
buildings thereon, situated in Port Elizabeth, and
yielding a rental of about £48 a year, was ordered
not to be sold. There was a debt of £60 due by
the estate to Messrs. Ohlsson & Co., one of the
children had also reached his majority, and was
entitled to his maternal inheritance. There were
no funds in hand to meet these claims, and in
consequence the executor dative asked that per-
mission should be given him to sell the property.
The Chief Justice said he thought no order
ought to be made on the present application until
some attempt had been made to raise money on
mortgage. To sell the property would be in
opposition to the will, and he was not satisfied
that money could not be raised.
THE PETITION OP MICHAEL CUNNINGHAM.
Transfer — Bond on property — Refund of
purchase money — Refusal to cancel.
Mr. Schreiner moved for authority to the Regis-
trar of Deeds to cancel the transfer to James
w
Maloney of certain lot of ground situated in Pier-
itreet, Port Elizabeth, the sale to the said Maloney
having been cancelled, and the purchase price
refunded.
It appears that the petitioner, who is a police-
constable in Pert Elizabeth, sold the ground to
Maloney for £25. After transfer had been passed
it was discovered that there was a bond on the
property. In consequence of this the purchase
price was refunded to Maloney, but the transfer
had not been cancelled. Maloney was now . re-
ported to be in North America, and the Registrar
of Deeds refused to cancel the transfer unless
Maloney were a party to the cancellation.
The Court granted a rule calling on James
Maloney to show cause on the first day of next
term why transfer should not be cancelled ; the
rule to be published in the Government Gazette,
and served on the Registrar of Deeds.
PAARL MUNICIPALITY V. BLIGNAUT.
Nuisance — Municipality — Distillery refuse —
Open drain — Interdict suspended.
Sir Thomas Upington, Q.C., for applicants.
Mr. Schreiner f er the defendant.
This was a motion to make absolute a rule
nisi restraining the respondent, Jan Hendrik
Blignaut, from discharging any refuse from the
distillery of Blignaut A Co., of the Paarl, into the
Municipal drain, pending an action to be brought
to compel the defendant to abate the nuisance.
The affidavit was read of the chairman of the
Paarl Municipality, who stated that the distillery
was in the most densely populated part of the
tewn, and that the refuse flowed for a distance ef
over 1,000 yards in the Municipal drain on the
side of Market-street, before discharging itself
inte the Berg River. Complaints had frequently
been lodged with the Municipality, and the
respondent had been called upon to abate the
nuisance. The firm had occasionally flushed the
drain with water, but had done nothing
permanently to abate a nuisance which was now
intolerable. A petition against the nuisance had
been presented by a number of the inhabitants.
The affidavit of Jan Hendrik Blignaut, the
respondent, was also read. He stated that the
business had been carried on for thirty-six years,
and that most of the distilling was done in the
winter months. The refuse was carried by a brick
gutter a distance of 150 yards, when it fell into an
open Municipal drain crossing the main road. It
consisted mainly of distilled wine and clean wattr
used for cleaning the machinery ; the fluid was
clean and inoffensive when it left the distillery,
and continued so until it came into contact with
the rubbish and garbage put in the Municipal
drains by the inhabitants, which was allowed to
remain until it was decomposed and an offensive
smell arose, and this it was the duty of the
Municipality to prevent. Deponent had heard of
no complaints regarding the private drain of 150
yards in length, and he had offered to the
applicants to lay pipes on the £ for £ principle,
but they had refused to accept the proposal.
Mr. Schreiner also read the affidavits of Mr.
Malherbe, who previously owned the distillery, and
of the District Surgeon and another doctor, who
practises at the Paarl, and which showed that the
nuisance was caused by the Municipality not
keeping the drain clean.
The Chief Justice remarked that the liquid
might be quite innocuous when it left the dis-
tillery, but when it had gone some distance it
might become a great nuisance, as in the case
of refuse from a brewery.
Mr. Schreiner quite agreed, but said a brewery
was quite different from a distillery.
The Chief Justice suggested that the case was
not one for a role nisi. People's ideas upon
sanitation were certainly more refined in the
present day, but it must be remembered that the
distillery had been discharging refuse for a very
long time, although the fact that the inhabitants
had not offered opposition previously did not
prove that the refuse was inoffensive.
After argument,
The Court gave no expression of opinion upon
the case, but suspended the interdict pending an
action for a perpetual interdict, the applicants
undertaking to keep the drain clean of other offen-
sive matter ; costs to be costs in the cause.
The Chief Justice said it would be all the better
if the parties could come to an amicable agree-
ment.
INSOLVENT ESTATE DONALD D. HOUSTON.
Mr. Schreiner moved to make absolute the rule
nisi authorising the Registrar of Deeds to register
in the name of the said estate a certain farm called
Ylakplats, situated in the district of Griqualand
Bast.
The Court made the rule absolute, subject to
the production of a Kokstad paper containing
notice.
D'ABC V. BENSON AND MCDEBMOTT.
Sir Thomas Upington moved to make absolute
a rule nisi interdicting the sale in execution in the
said suit of certain property attached by the
Deputy Sheriff of Uitenhage, pending the decision
of the Court as to the ownership thereof. There
was no appearance for the defendants, and
The Court made the rule absolute as prayed,
costs to abide the result.
u
DAMARALAND MINING AND EXPLORATION
COMPANY, LIMITED.
Company — Winding up — Appointment of
liquidators.
Mr. Schreiner moved to have this company
placed under the operation of the Winding-up
Act, and for the app< intra en t of Messrs. H. Gibson
and J. A. Bam as official liquidators. The liabili-
ties being £650, and the assets £150.
The motion was granted, the official liquidators
to have powers under the 15th section of the Act.
PETERS V. PETERS.
Mr. Jones moved, on behalf of Mrs. Peters, at
present residing in the district of St. Mark's,
Tembuland, for an order of restitution of conjugal
rights against her husband, William Peters, and
failing compliance with which a decree of
divorce, and the custody of the two
children of the marriage. The parties were
married in 1880 at King William's Town. In
1884, whilst they were at Gradonk, defendant
deserted his wife, who had never seen him since.
Neither was she acquainted with his whereabouts
until comparatively recently, when she learned that
he was in Auckland, New Zealand, and in a letter
had expressed himself as unfit to return to the
Cape, and he had no intention of so returning.
He hoped his wife would get a divorce if she
applied for it.
The Court granted the order as prayed, defen-
dant to return to or receive plaintiff on or before
80th May next, failing which to show cause on the
last day of next term why a decree of divorce,
carrying with it the custody of the children, should
not be granted the plaintiff, the order to be
published in the same manner as the interdict,
namely, in the Auckland Star,
SUPREME COURT.
TUESDAY, MARCH 17.
[Before the Chief Justice (Sir J. H. DE Vil-
LIERS) and Mr. Justice SMITH.]
THE CAPE OP GOOD HOPE BANK (IN LIQUIDA-
TION) V. THE SOUTH AFRICAN ASSOCIA-
TION, IN THEIR CAPACITY AS EXECUTORS
OF THE LATE MR. VAN LEER.
Company — Bank in liquidation — Call on
shares — Execution — Payment by executors
de bonis propriis — Rights of executors
against heirs and legatees.
Mr. Schreiner, on behalf of the applicants,
moved for leave to issue execution for £860, being
the amount due on calls in respect of twelve shares
registered in the name of the late Mr. Van Leer.
Mr. Juta appeared for the respondents.
After hearing the affidavits and arguments of
counsel, the Court granted a writ of execution
against the respondents, and failing assets, granted
a rule calling on them to show cause on 13th April
why they should not pay the amount of the calls
de bonis proprii*, reserving to the respondent* any
rights they may have against the heirs or legatees
of the estate.
MCLEROTH V. MCLEROTH.
Sir T. U ping ton, Q.C., appeared for the appli-
cant, and Mr. Shiel, as curator ad litem, for the
respondent.
This was an application to make absolute a rule
nisi calling upon the respondent to show cause why
he should not be declared of unsound mind and
incapable of managing his own affairs.
The Court having heard the evidence of Dr.
Dodds, medical superintendent of the Valkenberg
Asylum, Mowbray, declared the respondent of
unsound mind, and incapable of looking after his
own affairs, and appointed his wife, Mrs. Sophia
McLeroth, of Beyer's Hotel, Caledon, curator of
his property and guardian of his minor children.
VAN ZYL AND OTHERS V. DE BEER'S
EXECUTRIX.
Interdict— An interdict will not be granted
unless a prima-fade case has been made.
Mr. Searle moved for an order restraining the
respondent from obstructing the flow of the water
in a furrow leading from the farm Matroosfontein
to Wittedrift, in the district of Piquetberg.
Mr. Schreiner appeared for the respondent.
The Chief Justice, after having heard the argu-
ments of counsel, remarked that the case was
clearly not one for an interdict, as a prima-facie
case had not been made. No order would be made
at present, it being open to the applicants to bring
an action for damages, if they had incurred any,
costs to be costs in the cause.
C. CLACK AND OTHERS V. THE RESIDENT
MAGISTRATE OF ORAAFF-REINET.
Municipality — Municipal regulations — Re-
gulating " traffic and processions " — Sal-
vation Army — Ordinance 9 of 1836, and
Act 46" of 1882.
Mr. Juta appeared for the appellants, and Mr.
Schreiner for the respondent.
79
This was an appeal from a decision of the
Resident Magistrate of Graaff-Reinet, in a ease
in which certain members of the Salvation Army
were summoned by the Graaff-Reinet Municipality
for having contravened one of the Municipal
regulations by marching in procession through the
streets, blowing trumpets and beating a drum, to
the annoyance of the inhabitants, without having
obtained the consent of the Municipality. The
appellants were convicted, hence the appeal.
Mr. Juta having addressed the Court) in support
of the appeal,
The Chief Justice, without calling upon Mr.
Sehreiner to reply, said the appellants were some-
what misled by the decisions of the Court in the
Paarl and Wellington cases, which were decided
under Ordinance 9 of 1836, and whioh did not give
Municipalities the larger powers conferred on them
by Act 45 of 1882. Under the 109th section, sub-
section 4 of that Act, the Municipalities had power
to make bye- laws for suppressing nuisances, and
quite independently of nuisances, the 26th subseo-
tion gave them the power of making bye-laws for
regulating traffic and processions. The Graaff-
Reinet Municipality relied upon their 103rd regula-
tien,whkh provided that no person should sing, yell,
or create other objectionable noise in the streets
without the consent of the Municipality. He
(the Chief Justice) was not prepared to say that
the whole of this regulation was within the
power of the Municipality — for instance, as to
single person singing or beating a drum in
the street — but where there was a procession
of persons parading the streets Hnd beating
drums and playing instruments, it was clear
there was an infringement of the 103rd section,
to the extent to which the Municipality was
justified in making the regulation. In his opinion,
to that extent the regulation was entirely intra
vires, and the Municipality had the power to
provide that there should be no procession with
playing of musical instruments, without the
eoasent of the Council having first been ob-
tained. The Magistrate was right in his judg-
ment, and the appeal would be dismissed with
costs.
Mr. Justice Smith, whilst not prepared to differ
from the judgment of the Court, particularly
as Mr. Justice Buchanan had given a similar
decision, yet had some doubts as to whether a
bje-law of the kind in question came within the
meaning of the words " regulating traffic and pro-
cessions." He could quite understand that if a
procession made a nuisance, it would be a proper
regulation to prohibit it, but it seemed now as if a
Roman Catholic burial procession, passing along
the streets and chanting, would not have the right
to proceed at all without permission. The case
involved by the present appeal seemed to him a
doubtful one.
SUPREME COURT.
(IN CHAMBERS).
TUESDAY, MARCH 24.
[Before the Chief Justice (Sir J. H. DE VILLIER8)
and Mr. Justice Smith.]
ADMISSION.
On the motion of Mr. Sehreiner, Mr. Charles W.
A. Hayward, of the Inner Temple, was admitted
to practise as an advocate.
REQINA V. GUYSMAN.
Act 27 of 1882, section 9.
The Chief Justice remarked that the above case
had come before him for review from the Special
Justice of the Peace at Prinoe Albert. The
accused was charged with contravening Act 27 of
1882, section 9, and was convicted. There was no
evidence that the accused was drunk in any street
road, lane, or publio place, or in or near any shop,
store, hotel, or canteen, and consequently the con-
viction must be quashed.
REQINA V. HENDRIK FILLI8.
Act 18 of 1898, section 2.
This case came on review before Mr. Justice
Smith from the Resident Magistrate of Riversdale.
The accused was oharged under Act 18 of 1888,
section 2, and was convioted.
Mr. Justice Smith remarked that there was an
absence of motive and of evidence that the offence
had been committed by the accused. Under these
oircumstances the conviction must be quashed.
IN THE ESTATE OF THE LATE WILLIAM
WESLEY MARTIN.
Deed of transfer — Amendment of— Where
curators had purchased land and passed a
bond in their individual names, and not in
their capacity as curators, the Court
directed the necessary amendment to be
made.
Mr. Sehreiner moved for authority to the Regis-
trar of Deeds to amend a certain deed of transfer
and mortgage bond passed on the 80th November,
1881, by substituting for the individual names of
the curators of the said Martin their names in their
capacity as curators,
80
It appeared from affidavit that after Mr. Martin
had been placed under ouratorship, certain pro-
perty was purchased for the benefit of the estate
for £2,700, of which £1,300 had been paid off, and
a bond was passed for the balance in the in-
dividual names of the curators, and not in their
capacity as curators. The investment proved a
profitable one to the estate, as it yields about
£282 per annum. Authority was now asked for
the amendment of the deed of transfer. To this
the mortgagees, the General Estate and Orphan
Chamber, consented, and the Court granted the
order.
THE PETITION OF HARRY BOLUS.
On the application of Mr. Schreiner, the Court
granted six months' leave of absence, from the 1st
April next, to Mr. Harry Bolus, one of the official
liquidators of the Cape of Good Hope Bank.
PETITION OF FREDERICK J. VAN ZYL.
Mortgage Bond — Cancellation on grounds
that mortgagee had been paid.
Mr. Joubert applied for authority to the Regis-
trar ef Deeds to cancel a mortgage bond for
£150, passed by Gert J. van Zyl to one Balthaser
Klopper in 1857, on the ground that the said sum
had been paid to the mortgagee.
The Court granted a rule nisi, calling upon all
persons interested to show cause on the 15th May
next why the order should not be granted, notice
to be published in the Government Gazette, and
served on the other heirs in the estate.
PETITION OF PHILIP J. R. HODGES.
Guardians' Fund — Minors — Capital.
Mr. Juta applied for leave to draw from the
Guardians' Fund, out of a legacy bequeathed to
petitioner by one Mrs. Yob, the sum of £87, to be
advanced for one year towards his maintenance
and education while studying for the Civil Service
Examination. His mother was quite unable to
support him.
The Court intimated that application should
have been made to the Master in the first instance
Mr. Juta said that was very expensive. A report
from the Matter would cost £10 or £15.
The Chief Justice : But that cannot be. The
Master charges no fees, and there are only the
attorney's expenses. I should like to hear from
some attorney why the expenses are so high.
Mr. Juta said that the stamp on the Master's
report would be a guinea, besides the cost of a
second motion and possibly witnesses' expenses.
He remembered a case once, and the cost of
reference to the Master amounted to £20.
The Chief Justice : We must be careful about
referring matters to the Master if the expense is
so great.
The Court granted the order.
IN THE MATTER OF THE MINORS RUSSOUW.
Guardians' Fund — Minors — Capital — In
terest.
Mr. Webber moved for authority to the tutor
testamentary of the minors to draw from the
Guardians' Fund, out of moneys devolving upon
the minors from the estate of their deceased
grandfather, a sum of money to enable them to
provide a more suitable education than the pre-
sent income will allow.
It appeared from affidavit that the present in-
terest only amounted to £79 16s. 8d. per annum,
and an additional £100 would be required for the
purposes set forth in the petition.
The Court granted an order that so much
should be drawn from the capital as, together
with interest, would give each minor £60 per
annum until he or she had reached majority.
IN THE INSOLVENT ESTATE OF 181 DO BE
HIRSGH.
On the application of Mr. Schreiner, who repre-
sented creditors to the amount ef £4,200, Mr. G.
W. Steytler was appointed provisional trustee,
with power to carry on the insolvent's hotel busi-
ness at Muizenberg.
DIGEST OF CASES.
28
79
79
67
8
21
24
PAGE
Act 18 of 1873, Sec 2— Person charged under
wrong section — Conviction quashed —
Begina v. Briel
Act 27 of 1882, Bee. 9— Begina v. Guysman ...
Act 18 of 1888, Sec. 2— Begina v. Fillis
Action — Postponement of in consequence of
unavoidable absence of Defendant — Pay-
ment of tender — Preiss v. Gluckman
Attachment of funds in hands of agent —
Proper form of process is to sue out
execution — Cape of Good Hope Bank (in
liquidation) v. Vowell ... ... ... 2
Attachment of property ad fundandam juris-
dictionem — Issue of summons before rule
nisi had been granted — Rule discharged —
Taylor 6 Symonds v. Schunke ...
Attachment ad fundandam jurisdictionem of
heir's interest under will — In the estate
of the late J. Quin
Attachment of debt — Askew v. M oiler
Attachment of funds in hands of Company ad
fundandam jurisdictionem — Cessionary—
Binwald v. The German West African
Co. (6 Juta, 86) considered and followed —
Mackie, Dunn & Co. v. The Potchef stroom
Exchange Co. (Limited) ... ... 66
Balance of account — Action — Disputed items.
— Severn's Executors v. Ely ... ... 82
Clerk articled to Attorney allowed to continue
his articles notwithstanding an interval of
non-service for twelve months. In re.
Gibbon ... ... ... ... 84
Clerk articled — Application for admission as
an Attorney refused, — applicant not
having passed the whole of his time under
the immediate supervision of his prin-
cipal — In re Scheepers ...
Company — Bank in liquidation— Compro-
mises — The Cape of Good Hope Bank (in
liquidation) ... ... ... ...
Company — Bank in liquidation — Compromises
— Confirmation postponed sine die — The
Cape of Good Hope Bank (in liquida-
tionj ... ... ... ... ... it
Company — Bank in liquidation — Contribu-
tories — Application to vary list— The Cape
of Good Hope Bank (in liquidation) v.
Estate of Van Lier ... ... ...18-78
Company — Bank in liquidation— Inspection of
books— The Paarl Bank (in liquidation) 19
63
18
PAGE
Company — Bank in liquidation — Shareholders
past and present — Application to j.lace
past shareholders on list of Contribnturies
refused on the grounds, inter alia, that the
liquidators had failed to show that any of
the debts owing by the Bank had been
incurred before such past shareholders
had transferred their shares— The Paarl
Bank (in liquidation) ... ... ... 85
Company — Bank in liquidation — Vail en
shares— Writ of execution— Payment by
executors de bonis propriis — Bights of
executors agtfinst heirs and legatees —
The Cape of Good Hope Bank (in liqui-
dation) v. The South African Association 78
Company— Bank in liquidation - Contraot
entered into between liquidators and
debtor of Bank approved of by Court -
The Cape of Good Hope Bank (in liqui-
dation) in re Coronet's contract ... ... 60
Company— Bank in liquidation— Order in
terms of liquidators' report — Dividend—
Remuneration of liquidators — The Cape
of Good Hope Bank (in liquidation) ... 50
Company — Bank in liquidation— Contribu-
tories — Execution — The Paarl Bank (in
liquidation) v. Hugo & others 71
Company — Bank in liquidation — Compromise
— Former shareholders— Contributories —
Exoussion— Aot 23 of 1861— Where liqui-
dators have entered in to a compromise with
a shareholder and have not availed them-
selves of the powers conferred upon them
by Act 23 of 1861, Sec. 13, they cannot fall
back upon former shareholders who Had
bona jide transferred their shares to the
person with whom the liquidators have
compromised
Quare : Whether past shareholders can be
placed upon the list of contributories
before all the assets of the bank have
been realised — The Cape of Good Hope
Bank (in liquidation) v. East, Hunciman
& ethers ... ... ... ...73-75
Company — Bank in liquidation— Contribu-
tories- Deceased shareholder — Mutual
will — Partnership — Condictio indebiti
It is not safe or proper for an executrix to
pay to herself as surviving spouse any
portion of the common estate until her
11
DIGEST OP CASESi
PAGB
husband's shares in an unlimited banking
company have been transferred, or the
liability entailed by their retention has
been ascertained and provided for — The
Union Bank (in liquidation) in re the
Estate of the late F. W. Hofmeyr ... 64
Company — Bank in liquidation— Contribu-
tories — Executors — Payment de bonis pro-
priis — The Union Bank (in liquidation) v.
Watson's Heirs ... ... ... 72
Company — Bank in liquidation— Execution in
respect of calls due upon shares — The
Union Bank (in liquidation) v. Brentnall 76
Company — Bank in liquidation — Winding-up
Act — Absconding contributory— Powers
of liquidators in such cases — The Paarl
Bank (in liquidation) ... ... ... 81
Company — Winding-up — Appointment of
liquidators - In re the Damaraland Mining
and Exploration Co. ( Limited ) . . . ... 78
Contract — Breach — Damages — Prospecting
rights in territory of independent chief —
Groom A White v. The Bechuanaland
Exploration Co. ... ... ...40-46
Contract — Agreement with employe' — Con-
struction — " Absent from whatever cause "
—Thome <fe Stuttaford v. McNally ... 48
Costs— Security for— 8th and 14th Rules of
Court— Witham v. Venables (1 Menz , 291)
as explained by Lumsden v. The Kaffra-
rian Bank (8 Juta, 366), approved
A non-resident plaintiff who owns immovable
property in the Colony the value of
which after deduction of any mortgage
debts due thereon would suffice to pay the
probable costs of the action is relieved
from giving security for such costs —
Where however he is defendant in re-
convention he is obliged to give security
to perform the judgment of the Court
(cautio judicatum tolvi) — Taylor &
Symonds v. Schunke ... ... ... 14
Costs— Taxed of motion in High Court of
Justice — Provisional sentence
Where a person brings two actions and is un-
successful in the first he must pay the
costB of the unsuccessful action before he
will be allowed to proceed with bis
second action — Cape Central Railways v.
Walker
73
Curator — A curator of the estate of a person
of alleged defective mind will not be
appointed until a summons has in the
ordinary course been served on such
person and until he or his curator ad
litem has failed to show oause— The
Petition of Eleanor Hyland ... ... 80
Debt— Judgment— Stay of execution— Re-
fusal of Magistrate to take evidence as to
PAGE
ability of defendants to pay more than
amount tendered — Appeal — Judgment
amended by striking out stay of exe-
cution — Leave granted to respondents to
produce further evidence — Heydenrych
v. Salomon & McLoughl in ... ... 67
Debts due to Insolvent Estate— Purchase of
right to recover same — Partnership —
Final statement of accounts — Heyden-
rych v. Langermann ... ... ... 67
Deed of Transfer — Registration of ordered,
although a rule established in the Deeds
Office had not been complied with —
Atkinson v. The Registrar of Deeds ... 17
Deed of Transfer — Amendment of
Where curators had purchased land and passed
a bond in their individual names and not in
their capacity as curators the Court
directed the necessary amendment to be
made— In the estate of the late W. M.
Martin ... ... ... ...
De lunatico inquirendo — Hyland v. Hyland ... 81
De lunatico inquirendo — Parker v. Hopkins40-49-76
Diamond— Right to possession — Action for
recovery — Mathew v. Pentz ... ... 40
Divorce — Damages -Assault — Claim in re-
convention — Oliver v. Oliver and Peckover 61
Divorce — Damages — Unstamped affidavits
allowed to be read
Application to make absolute rule nut permitt-
ing applicant to sue in forma pauperis
refused and rule discharged where it
appeared from affidavit that applicant had
realised joint estate and remained in pos-
session of proceeds — Levatte v. Levatte
& Henderson ... ... ... ... 76
Evidence — Commission de bene esse — Teenga
v. Garlick ... ... ... 84
Fraud and Misrepresentation — Principal and
Agent — Principal's authority exceeded by
agent — Postponement owing to absence of
important witness — Wright & Williams... 88-57
Funds belonging to person reputed to be dead
in the hands of Trust Co.— Application
for payment of
The proper course is to appoint an executor
and administer the estate as of a deceased
person— In re Kelson ... ... ... 8
Guardians' Fnnd— Minors— Capital— Interest
— In re the Minors Russouw ... ... 80
Guardians' Fund— Minors— -In re the Minor
Hodges ... ... ... ... 80
Goods — Purchase— Repudiation by buyer—
Hulbert v. Caporn & Marriott ... ... 60
Insolvency - Appointment of new trustee for
specific purpose — In the Insolvent Estate
of Ackermann... ... ... ... 69
Insolvency — Provisional Trustee — Application
for appointment of co-trustee
DIGEST OF CASES.
Ill
PAGE
Where the Court has appointed a provisional
trustee the appointment will not be set
aside unless at a meeting of creditors one
or more trustees are elected — In the In-
solvent Estate of C. J. Viljoen ... ... 59
Insolvency — Transfer of shares by insolvent
— Application to take evidence on com-
mission — In the Insolvent Estate of H.
xleatn ••• ••• ••• ••• (*■
Insolvency — Sequestration of estate — Pro-
visional order for set aside on want of
proof of insolvency — Act 38 of 1884 —
Moller v. Askew .., ... ... 11
Interdict on money in hands of third person —
Set off — Promissory notes not yet due —
Contempt of Court — Levin v. Garlick ... 25
Interdict granted restraining removal and sale .
of furniture attached by judgment of a
Resident Magistrate pending an action to
be brought for recovery of rent — Webster
v. Solomon ... ... ... ... 89
Interdict — An interdict will not be granted
unless a prima facie case has been made —
Van Zyl v. De Beer's Executrix 59-75-78
Interdict — Restraining sale of effects attached
by Deputy-Sheriff pending decision of
Court as to property in said effects —
D'Axc y. Benson <fe McDermott ... ... 64
Judgment — Application for leave to sign
against plaintiff for failure to proceed
with his action — Dal ton v. Quine ... 60
Lease — Hire and purchase system — Cancel-
lation of agreement owing to failure of
monthly payments — Tacit renewal of
lease — Claridge v. Kellaway ... ... 47
Lease— Exeeutable — Judgment— Act 19 of
1864— Practice— Graaff v. Klerck ... 1
Libel — Application for particulars of alle-
gations contained in alleged libel refused}
the Court being of opinion that the
charges made were sufficiently " specific "
— Sturrock v. Birt ... ... ... 20
Libel — Damages — Company — Meeting of
Shareholders — Directors' Report — Pub-
lication — Boose v. Woodhead & others ... 61
Liquidator — Leave of absence— Petition of
H. Bolus ... ... ... ... 80
Masters and Servants' Act— Police Act —
Using abusive and obscene language —
Conviction quashed — Regina v. Loontjes 71
Minor — Authority given to Master to con-
tinue payments toward* maintenance and
education—//* re the Minor Kemper ... 64
Minors — Application te draw from South
African Association • sufficient funds to
provide for maintenance and education —
In the Estate of the late J. A. Laubscher 1
Mortgage Bond — Cancellation of cession—
Non-compliance with Aot 8 of 1864, Seo.
PAGE
13 — Rights of mortgagor not affected —
Mostert v. Registrar of Deeds ... ... 19
Mortgage Bond — Application for cancellation
o£—In re Groove ... ... ... 18
Mortgage Bond — Application for cancellation
of refused where mortgagor was exe-
cutor ef mortgagee's estate — In re Burger 19
Mortgage Bond — Cancellation on grounds that
mortgagee had been paid— In re P. J. van
£A\X •• • •• • •• • ••• ••• Ov
Mortgage Bond— Provisional sentence on
postponed where mortgagor had denied
his signature — Executors of De Klerk v.
De Klerk ... ... ... ... 29
Mortgage Bond — Misdescription in Debt Re-
gister — The Dutch Reformed Church,
Adderley-street v. Registrar of Deeds ... 75
Mortgage bonds — Satisfied and subsequently
lost or mislaid — Application for cancel-
lation of — Rule existing in Registry of
Deeds, Cape Town — Refusal to comply
with rule by Registrar of Deeds, King
William's Town— Rule nut granted— The
Cape of Good Hope Bank (in liquidation) 60
Mortgage — Raising of loan by on property of
deceased person — In re Glynn (deceased) 3
Mortgage of landed property in estate of
deceased person to pay off bond and other
debts— In re Martin (deceased)... ... 11
Mortgage of landed property to meet calls on
shares in bank in liquidation — In the
Estate of the late John Wright, M.D. ... 1
Mortgage of landed property in estate of
deceased person to meet calls on shares in
bank in liquidation— In re the Estate of
Thomas Hall (deceased) ... ... 11
Mortgage — Application to raise loan on for
purpose of executing necessary repairs
and satisfying debts— In the Estate of
Samuel Phillips ... ... ... 36
Municipality — Municipal Regulations— Reg-
ulating " traffic and processions " —
Salvation Army — Ordinance 9 of 1836 and
Act 45 of 1882— Clack and Others v. The
Resident Magistrate of Graaff-Reinet ... 78
Municipality — Municipal Regulations— Cess-
pools — Where a Municipality has by its
regulations power to close cesspools it
cannot compel an inhabitant to empty
and close a cesspool situated on his land
— Van Heerden v. The Municipality of
Viotoria West... ... ... ... 70
Negligence — Damages — Bursting of dam —
Vis Mcy'or— Kunn v. Schalkwyk ... 66
Non-jurisdiction and Irregularity — Act 20 of
1856— 190th Rule of Court— " Judicial
Proceedings capable of being reviewed " —
Where a Resident Magistrate not in his
magisterial capacity but as " Head of the
District " had settled a dispute between
two natives such a proceeding was held
IV
DIGEST OF CASES.
PAGE
not to be a judicial proceeding capable
of being reviewed within the 190th Rule
of Court— Duna v. Sabenkola ... ... 70
Nuisance — Municipality — Distillery refuse—
Open drain — Interdict suspended — The
Paarl Municipality v. Blignaut... ... 77
Partnership— Statement of account — Alleged
breach of agreement — Dissolution by
mutual consent — Counter-claim — Ross v.
Scott & Armstrong ... ... ... 24
Process in aid of judgment of High Court —
D'Arc v. Benson & McDermott... ... 19
Process in aid of judgment of Eastern Dis-
tricts Court — Scallan's Executors v.
Voortman ... ... ... ... 20
Promissory Note — Unstamped — Penalty —
Provisional sentence — Executors of
Loynes v. Cochrane ... ... ... 49
Report, First, of Liquidators— Paarl Bank ... 12
Report, Second, of Liquidators— Cape of
Good Hope Bank ... ... ... 21
Sale — Conditions — Payment by instalments —
Provisional sentence refused where period
within which first instalment was to have
been made had not expired — Botma v.
Botma ... ... ... ... 72
Securities in possession of bank— Refusal to
realise — The Union Bank (in liquida-
tion)' ...
80
Ship — Arrest ad fundandam jurudictionem —
In re the barque " Hera " ... ... 20
Ship— Cesser of charterer's liability — Lien by
shipowner for freight, dead freight and
demurrage — Custom of port — Case
governed by English law — Lane v. Sorens-
sen in re u Saga " ... ... ... 26
Support adjacent and subjacent — Lease of
diamondiferous claims — Trespass — Act 19
of 1888- In the absence of stipulation to
the contrary in a lease the right to lateral
support exists as a natural right incident
to the lessor's hand when the latter is the
adjoining owner— Louden and South
African Exploration Company v. Rouliot 4
Surety— Bond — Partnership — Where a person
has become surety for auother under a
bond and has renounced the btntficia
nothing that such other person may have
done can affect the rights of the bond-
holder against the surety- Green & Co. v.
Be vend ge ... ... ... ... 69
Transfer— Bond on property — Refund of
purchase money — Refusal to cancel — In re
Cunningham ... ... ... ... 76
Trespass — Damages— Road — Divisional Coun-
cil—Acts 27 of 1884 and 40 of 1889—
Perpetual interdict — Gill v. Hirsch ... 68
PAGB
Trespass— Application to make rule nisi
absolute — Rule suspended — Action to be
brought— Colonial Orphan Chamber v.
Marnits ... ... ... ... 76
Trespass — Interdict — Rule nisi made absolute
— Meyer v. Reisberg ... ... ... 76
Trustee — Extension of time within which to
file final accounts allowed — In the Insol-
vent Estate of Aunn ... ... ... 36
Trustees — Appointment of trustees by
Chancery Division of High Court of
Justice (England) confirmed — Jn re
Luscombe's Trust Fund ... ... 72
Trusteeship— Application to be relieved of —
Consent of joint trustee- In the Estate '
of the late John Miller... ... ... 84
Venue — Change of — Regina v. Manel ... 88
Will — Construction — " Absolute right " or
" defined interest " — Morgan & Coltman v.
Executors ef Grower ... ... ... 8
Will — Mutual— Codicils made subsequently to
testator's death — Exception.
Where under a mutual will a daughter had
acquired a " vested interest " her execu-
tors are the proper persons to sue and not
her children — Marais v. R ens burg ... 10
Will — Where F., who had inherited certain
money under the will of his father, had
deserted his wife and had not contributed
to her support or to that of the children of
the marriage, he was on his wife's petition
ordered to pay over to her half the amount
coming to him under his father's will —
Petition of A. J. Fourie ... ... 64
Will— Alienation of landed property pro-
hibited — Quitrent — Application for leave
to sell— In the Estate of W. Pretorius
(deceased) ... ... ... ... 84
Will — Executors exempted from filing
accounts — Ordinance No. 104 — Notioe —
Where a testator has by his will exempted
his executors from filing the ordinary ad-
ministration accounts notice ought to be
given to the executors before calling upon
them to conform to the provisions of
Ordinance 104 — In the Estate of the late
John Jamieson ... ... ... 78
Will — Landed Property— Executor dative-*
Maternal inheritance — Debts due by
estate — Where under a will the sale of
landed property had been prohibited the
Court refused to empower an executor to
sell the property to meet existing claims
until satisfied that sufficient money for
that purpose could not be raised by way of
mortgage — In the Estate of the late
J. S. Masters ...
76
TABLE OF CASES.
PAGE
Abrahamae, Dirk, Petition of ... ... 101
Abrahamse ▼. Abrahamse... ... 118, 122, 148
Adkins, H. J., tn re ... ... ... 124
Anderson A Murison v. The Omarnru G. M.
^>o« • • # » • • * • • • • • • • •
Arthur, Mary, in re
Askew v. Moller ...
Atmore, Elizabeth, Petition of
Attwell, R. 6., in re
Aaret v. Executor of Haarhoff
.pate v. ^m ei ... ... ... • • •
Benally ▼. Benally
Berry, R. J., m re ... ... ...
Beukes, Gideon, in re
Bezoidenhoud, M. E. J., tit re
Bibbey v. Barnard ... ... ...
Birch, W. T , in re
Board of Executors v. Malan
Bodley v. Bodley ...
Boonzaier v. Castens
Botha, J. £L, in the estate of
Botha, Ii. J., in re the Minor children of ...
Broad, Charles, in re
Brown, J. M., tit re ... ... ...
Brown A Bate v. Green ...
Brnnner v. de Villiers
Bultfontein M.B. v. L. A 3. A. Exploration
Company A Armstrong
Burgers r. Burgers
Barn, 8. J., Petition of ...
Campaan v. Campaan
Cape Central Railways (in liquidation)
Cape of Good Hope Bank (in liquida-
tion) 82, 86, 99, 121, 166
Cape of Good Hope Bank (in liquidation).
Third Report
Cape of Good Hope Bank (in liquidation)
tn re Arnoltz's Estate...
Cape of Good Hope Bank (in liquidation) v.
Arnoltz A Co.
Cape of Good Hope Bank (in liquidation) v.
Arneltz, Junior ... ... ...
Cape of Good Hope Bank (in liquidation) v.
xycneys ... ... ... ...
Cape of Good Hope Bank (in liquidation) v.
Forde A Co. ... ... ... ...
Cape of Good Hope Bank (in liquidation) v.
Pjlkington ...
88
124
128
121
81
182
103
186
83
124
120
88
147
117
139
169
163
166
169
169
126
111
... 148
... 143
... 170
... Ill
84,110
112
99
103
108
82
137
97
PAGE
Cape of Good Hope Bank (in liquidation) v.
Porter ... ... . . ... 104
Cape of Good Hope Bank (in liquidation) v.
Twentyman ... ... 163, 170
Cape of Good Hope Bank (in liquidation) v.
Van Licr's Executors... ... 104, 106
Cape of Good Hope Bank (in liquidation) v.
Watson's Heirs A Executors ... 104, 106
Cape of Good Hope Bank (in liquidation) v.
Whitton ... ... ... ... 164
Carelse v. Carelse ... ... ... 183
Churchwardens, Dutoh Reformed Church,
Aliwal North ▼. Green ... ... 144
Claremont, Rondebosch, A Mowbray Muni-
cipalities v. Ohlsson f B Cape Breweries ... 84
Cloete, J. H., in re
Cohen v. Stegmann ... ... ... 149
Combrinck v. My burgh ... ... 130,136
Conradie, D. J., in the Insoluent Estate of ... 96
Copeland v. Short A Co. ... ... 141, 143
Coronel v. Ward A Wessels ... 134, 159
Cranko's Executors v. Van Schoor... ... 103
Cronge, P. D., tn re
Cunningham, M., Petition of
Currie, W. J., tn re
Daly, Hendrika C, Petition of
Damaraland Mining A Exploration Company
(in liquidation) in re ...
De Jager, M M. A., in re ...
De Klerk v. Marais
Dessauer v. Dessauer
De Vaal, B. J., in re ... ...
De Villiers v. Baartman ...
Duncan v. Tiengo
Du Plessis, J. P., tit re
Du Plessis, C. 8., tn re
Du Plooy, C. W., tn re
Du Toit, J. J., Petition of
Dutch Reformed Church v. The Master A
South African Association
Eaton, A. M., Petition of ...
Eaton, Robertson A Co. v. Oliver ...
Erasmus, J. L., tn re ... ... ...
Estate, Robertson A Bain v. du Plessis
Evans, J. B., in the estate of the late
Executors, Mary Quin, v. Executor, John
Qnin ... ... .» 184, 159
Forrest v. Ohlsson's Cape Breweries ... 84
88
111
133
166
171
... 103
... 188
... 84
... 124
... 103
118, 121, 124
... 103
... 147
... 142
... 153
122
169
182
124
117
111
u
TABLE OF CASES.
PAGE
Frylinck, J. B. P., tn re ... ... ... 103
Gasiep v. Salie and another ... ... 147
Gladstone, G., Petition of ... ... ... 86
Go ugh, E. M M in re ... ... ... 103
Groom <fe White v. The Bechuanaland Ex-
ploration Company, (Limited) 110, 128
Hall <fc Co. v. October ... ... ... 103
Harris v. Behm ... ... ... ... 128
Harris & Co. v. Grodner ... ... ... 102
Henning, J. C, tn re ... ... ... 83
Hill «fe Paddon v. The Colonial Government 147
Hirst v. Muller, Smith & Co. ... 103, 1 18
Holliday, H., in the estate of the late ... 171
Holme, D. H., tn re ... ... ... 81
Holtzhaust-n, A. M., in re ... ... ... 103
Honey borne v. Honey borne ... ... 139
Hopkins v. Hopkins ... ... ... Ill
Hopkins, M. A., in the estate of ... ... 98
Hughes, I. P., tn re ... ... ... 103
Humphries v. Speneer ... ... ... 170
Hyams, S., tn re ... ... ... ... 83
Impey, Walton <fe Co. v. Perkins ... ... 82
Jones v. Cauvin <fe Co. ... ... ... 168
Joubert, P. P., and Others, Petition of ... 170
Kidwell, A. B., tn re ... ... ... 133
Kleyn, M. G. 8., in the Insolvent Estate of... 170
Knox, D., Petition of ... ... ... 169
Knysna, C. G. M. Co., (Limited), in re ... 134
Lamb, J., tn re ... ... ... ... 120
Lawrence v. Ward <fc Wessela ... ... 134
Lawrence & Sons, in re ... ... ... 103
Levatte v. Levatte ... ... ... 119
Liebenberg v. Westhuysen ... ... 102
Liebenberg v. van der Westhuysen ... 166
Lind v. Van der Veen ... ... ... 112
Lischtly v. Strangmann ... ... ... 168
Loedolff, C, tn re... ... ... ... 120
Louw v. Theron ... ... ... ... 81
MacKenzie, M. E., tn re ... ... ... 169
Marais, I. S. J., tn re ... ... ... 147
Maritz, P. J., in re ... ... ... 103
Maroney, Mary, tn the estate of the late ... 166
Master Supreme Court, Petition of ... 142
Master Supreme Court v. Buxman... ... 146
McNaughton's Assignees v. Louw ... ... 124
Mellish, v. Floris... ... ... ... 146
Miller v. The Richmond Licensing Court 124, 146
Molteno's Executors v. Elliott ... ... 82
Momsen, J. A. L., in re ... ... ... 103
Morkel, W. V , tn re ... ... ... 87
Mostert, P. J. C, tn re ... ... ... 83
Mulvihal, T., Petition of ... ... ... 138
Mutual Society v. Claremont Hall Trustees 82
My burgh's Assignees v. Klerck ... ... 103
Myekulu v. Simkins ... ... ... 116
Nel and others v. Nel's Executrix ... ... 126
Nezar, G. A. T., tn re ... ... ... 83
Niehaus v. Niehaus ... ... ... 188
Jforval, J. J., tn re ... .., ... 88
PAGE
Nowitz, B. I., tn re ... ... ... 120
Oates, M. A., Petition of ... ... ... 97
Oates v. Trustee Insolvent Estate of Oatea 99
Oliver, R., in the Insolvent Estate of ... 134
Oliver, D. H., and others, Petition of ... 86
Omaruru, G. M. Co. (in liquidation) in re ... 119
Overbeek, H. M., in the Estate of... ... 124
Paarl Bank (in liquidation) v. Executrix 6
Heirs of Roux ... ... ... 186
Paarl Fire Assurance Co v. Gildenhuys ... 82
Phillips v. Phillips ... ... ... Ill
Pienaar's Executors, Petition of ... ... 142
Piet v. Piet ... ... ... ... 113
Port Elizabeth Town Council, Petition of ... 147
Pote, Charles, in the Estate of the late ... 101
Preiss v. Gluckman ... ... ... 116
Prince, Vintcent & Co. v. Lizamore ... 124
Regina v. Arcndse ... ... ... 97
Regina v. Arends ... ... ... 114
Regina v. Fredericks & Muhler ... ... 126
Regina v. Giliome, Sen. ... ... ... 166
Regina v. Haberkorn ... ... ... 102
Regina v. Logan ... ... ... ... 119
Regina v. Maseri A Ramsitsani ... ... 113
Regina v. Plessis... ... ... ... 102
Regina v. Plessis & Finnes ... ... 130
Regina v. Russouw ... ... ... 113
Rensberg v. Prins and others ... ... 183
Rensburg, M. C. J., Petition of ... 120, 166
Richards, M. A., Petition of ... ... 146
Riddell v. Riddell 84
Rigal v. Grodner... ... ... ... 102
Ross & Co. v. Perle ... ... ... 146
Rossouw, J. J , tn re ... ... ... 133
Rothwell v. Rothwell ... ... ... 147
Rudd, E. A., in re ... ... ... 103
Russouw v. Russouw ... ... ... Ill
Samodien, in the Estate of the late 124, 166
Savings Bank v. De Beer... ... ... 166
Scheepers, tn re ... ... ... ... 134
Schoeman, L. J., in the Insolvent Estate of 118
Searight v. Robertson ... ... ... 83
Sellar Brothers v. Cranna... ... ... 103
Shakofsco v. Van Noorden ... 101, 121
Sichel v. Kannemeyer ... ... ... 146
Sluiter v. Malan ... ... ... ... 118
Sluiter <fe Neser v. Medcalf ... ... 146
Smailes, P., Petition of ... ... ... 84
Small v. Frames ... ... ... ... 147
Smith v. Gluckman ... ... ... 83
South African Assurance Society v. Hartingh 118
South African Assurance Society v. Muller... 118
South African Loan & Mortgage Agency,
Petition of ... ... ... ... 169
Standard Bank, Petition of ... ... 86
Standard Bank v. Jooste ... ... ... 146
Staples v. Swansf elder ... ... ... 140
Stegmann v. Cohen ... ... 82, 102, 149
Stephan v. Lipsett 6 wife... ... ... 1 83
TABLE OF CASES.
•••
111
PAGE
Stewart v. Kingon ... ... ... 101
Steynsburg Steam Mill Co., in re ... ... 156
Steytler v. Cohen... ... ... ... 118
8toffels, Philida, Petition of ... ... 121
Straben v. The Cape District Waterworks
Company ... ... ... ... 171
Taylor & Symonds v. Sohunke ... ... 88
Teengs ▼. Garlick ... ... ... 182
Teengs t. Garlick, in re ... ... ... 156
Thompson, A., in re ... ... ... 147
Tiran, J. P., in the Estate of the late ... 98
Topp v. Topp ... ... ... ... 103
Truter, C. J. M., Petition of ... 142, 166
Union Bank (in liquidation) ... ... 101
Union Bank (in liquidation), in re Sir T.
Scanlen'e compromise... ... ... 122
Union Bank (in liquidation) v. Shackell ... 142
Union Bank (in liquidation) v. Uys 118, 119
Union Bank (in liquidation) v. Watson's
Heirs <fr Executors ... ... ... 104
Uys v. Baartman ... ... ... ... 118
Van der Merwe, W. J., »» re ... ... 147
Van Heerden, J. L M in the Estate of the late 171
Van Heerden, L. C, Petition of ... ... 170
Van Rensburg, M. C. J., Petition of 120, 166
Vin Wyk, J. A. B., in re 142
Van Zyl, J. B., in the Estate of the late 81
Van Zyl, P. J., Petition of ... ... 103
Van Zyl, P. P. J., in re 124
Van Zyl, in the Insolvent Estate of ... 81
Venter, C., Petition of 81
PAGE
Viljoen, C. J., in the Insolvent Estate of ... 154
Villa v. Villa Ill
Vink's Executors v. Uys ... ... ... 124
Vogelgezang, M. L., in re ... ... ... 120
Von Below v. Tiengo ... ... 118, 121, 124
Walker v. The Cape Central Railways (in
liquidation) ...
Walker v. The Cape Central Railways (in
liquidation), in re
Watson's Executors v. Broderick ...
Watson's Executors v. Watson
Wellington Bank (in liquidation) ...
We8thuysen v. Heyns and others ...
Wheeler, Petition ef
Wheeler v. Wheeler
White, J. G., in re
White, Muller & Go. v. Cohen
Wilke, in the Estate of the late
Williams v. Samuels
Williams v. Snooke
Wilson v. Hall & Weasels ...
Wilson v. Wilson & Minnaar
Woodman, C, Petition of ...
Worcester Municipality v. The Colonial Gov-
ernment ... ... ... ...
Wright v. The Colonial Government
Wright v. Williams
Zahn v. Du Preez
Zeederberg e\ Duncan v. Hall
Zoutspansberg Palmietfontein Estate Co.,
•f» r v»«« ••• ••» ••• ••• I XX
85
152
... 128
... 169
... 81
85
... 113
122, 146
... 103
... 83
... 9o
... 83
... 170
... 107
101, 146, 147
... 169
126
145
99
114
82
" CAPE TIMES " LAW REPORTS,
COURT
(IN CHAMBERS).
TUESDAY, APRIL 7.
[Before Mr. Justioe BUCHANAN.]
ADMISSIONS.
On the motion of Mr. Searle, Mr. Robert George
Attwell was admitted to practise aa an attorney
and notary public
On the application of Mr. Thome, Mr. David
Henry Holme was admitted to practise as an
attorney and notary public.
IN THE
INSOLVENT ESTATE OF
P. J. VAN ZYL.
FBEDEBIOK
On the motion of Mr. Molteno, authority wat
given to the liquidators of the South Afrioan
Bank to sign their consent to the discharge of the
above insolvent in terms of Ordinance 6 of 1843,
section 117.
LOUW V. THEBON.
Attachment — Judgment — Rule 329 — Appli-
cation for an order directing the Sheriff of
the Colony to attach account books and
collect outstanding debts refused, there
being no precedent for such a procedure.
Mr. Webber applied for an order directing the
Sheriff of the Coleny to attach the account books
of the defendant and to collect the outstanding
debts for the purpose of applying the proceeds in
redaction of the amount of a judgment of the
Supreme Court in a suit between the parties.
It appeared from the statement of counsel that
judgment had been obtained under rule 329, and
the plaintiff now prayed that the books might be
attached and the outstanding debts recovered.
As there appeared to be no precedent for the
Sheriff's undertaking the collection of assets in an
estate, Mr. Justice Buchanan suggested that the
applicant should take proceedings under the
Insolvent Ordinance.— No order was made.
M
THE WELLINGTON BANK (IN LIQUIDATION)
Company — Bank in liquidation — Private
liquidation — Application for an order
fixing the time within which claims should
be proved refused on the grounds that as
the liquidation was a private one the Court
had no power until the parties concerned
had put themselves under the operation of
the Winding-up Act.
Mr. Juta applied for an order fixing the time
within whioh all outstanding bank-notes should
be presented for payment and all claims proved.
The liquidation was a private one, and the present
application was made in accordance with a resolu-
tion of the shareholders.
Mr. Justioe Buchanan said he was afraid the
Court had no power te grant the application as
prayed for, and suggested, as had been done in the
case of the South Afrioan Bank, that the parties
should apply to be placed under the Winding-up
Act.— No order was made.
IN THE ESTATE OF THE LATE JOHANNES B.
VAN ZYL.
Mr. Molteno moved, on behalf of Martha Louisa
van Zyl, widow of the late Johannes B. van
Zyl, for authority to subdivide and transfer
to the legatees of the said estate cortain denned
portions of the farms Qrootfontein, Bland's River,
and Brak Vlei, situated in the division of Cradook.
Provision had been made under the will for the
subdivision and transfer.
The Court granted the order as prayed for.
THE PETITION OF CHRISTIAN VENTEB.
In this matter, whioh arose out of the pre-
ceding application, Mr. Molteno applied for
authority to the petitioner to subdivide and
transfer to certain minor children defined shares
of property bequeathed to them, with power to
sell the same in conjunction with the sale of the
portions belonging to the major children.
The order was granted as prayed for, the pro-
ceeds coming te the minor ohildren to be handed^
over te the Guardians' Fund*
82
THE CAPE OF GOOD HOPE BANK (IN
LIQUIDATION.)
Company — Bank in liquidation — Authority
given to Liquidators to accept certain
assignments in discharge of assignors
indebtedness to the bank.
Mr. Scbreiner, on behalf of the liquidators of
the above bank, applied for authority to accept
certain assignments offered by Messrs. Arnholz,
Stockdale, and Daly in respect of their Indebted-
ness to the bank.
The assignors were indebted to the
bank in the sums of £2,768, £8,221, and
£450 respectively, and it was estimated that
the property assigned would in the first two oases
at least realise those amounts. The offers had
been made to avoid compulsory sequestration, and
they were the best the liquidators oould obtain
under the circumstances.
The Court granted the necessary authority.
SUPREME COURT.
MONDAY, APRIL 13.
[ Before the Chief Justioe (Sir J. H. DB VILLIBB8)
and Mr. Justice BUCHANAN.]
PROVISIONAL ROLL.
PAABL FIRE AS8UBAN0B COMPANY V.
OILDENHUYS.
On the motion ef Sir T. Upington, Q C, the
final sequestration of the respondent's estate was
ordered.
STBGMANN V. COHEN.
Insolvency— Securities— Ordinance 6 of 1843 r
section 30 -Where a petitioning creditor
had omitted to put a ralue on securities in
his possession the Court refused to make
an order for compulsory sequestration.
Mr. Searle appeared for the applicant.
Mr. Juta for the respondent.
This was an application for the oompulsery
sequestration of the respondent's estate by reason,
as it was alleged, of his having preferred certain
creditors, and thereby committed an act of insol-
vency.
Mr. Juta, in opposing the application, contended:
m That the respondent was net insolvent ; (2)
that the petitioner was a seoured creditor, inas-
much as he held two life policies, one on the life
of the respondent for £600, and another on that
of his wife for £260, besides having a lien on the
furniture for rent ; and (8) that the applicant had
not complied with Ordinanoe 6 of 1848, section
80, inasmuch as he had not valued his securities.
Counsel also referred to the cases of the " Stan-
dard Bank v. Winterbach " (4 Juta, 829), the
a Standard Bank v. Kruger 6 Co." (4 Buch.,
B.D.O., 47), u Fleming and Mudie v. Van Eysaen "
(4 Juta, 866), and " Roberta v. The Cape ef Good
Hope Bank" (6 Juta, 184).
Mr. Searle, in reply, explained that the applicant
had not put a value on his securities through an
oversight, that the actual surrendered value of the
policies was only £10, and submitted that Section
80 oould not have been intended to apply to such
cases as the present, in whioh the securities were
merely nominal.
The Chief Justioe remarked that no sufficient
explanation had been given as to why the securi-
ties had not been valued. He was of opinion
that the rule established in many of the cases,
more particularly in that ef Roberts v. The Gape
of Good Hope Bank, applied, and consequently
the order ought to be discharged.
Mr. Justice Buchanan expressed his opinion in
similar terms to those of the Chief Justioe.
ZBEDEEBEBG AND DUNCAN V. HALL.
Mr. Gastens moved for provisional sentence on
two promissory notes, one for £678 7s. and the
other for £607 7s. lid.— Provisional sentence
granted.
IMPBT, WALTON AND OO. V» PERKINS.
On the motion of Mr. Tredgold a decree of civil
imprisonment was granted against the respondent.
MOLTENO'S EXECUTORS V. ELLIOTT.
On the motion of Mr. Molteno, the final seques-
tration of the respondent's estate was ordered.
MUTUAL SOCIETY V. CLAREMONT HALL.
Mr. Graham moved for provisional sentence on
a mortgage bond for £1,100, with interest at 6
per cent, from 1st July, 1890. — Provisional sentence
granted and property declared executable*
CAPE OF GOOD HOPE BANK (IN LIQUIDATION)
V. DENEYS.
Company — Bank in liquidation — Compro-
mises—Sanction of Court — Sequestration,
83
T*
Compromises entered into between the liqui-
dators of a Company placed under the
operation of the Winding-up Act and a
debtor are merely provisional and are not
binding agreements until the sanction of
the Court has been obtained.
Mr. Schreiner appeared for the official liquida-
tor! of the above bank.
Sir T. Upington, Q.O., for the respondent.
This was an application by the liquidators of the
above bank for an order for the final adjudication
of the respondent's estate. It appeared from an
affidavit sworn to by the liquidators that the
respondent was indebted to the bank in the sum of
£11,340 in respect of 878 shares, of which he was
the registered holder. In respect of this claim
Mr. Deneys had entered into an arrangement with
the liquidators to assign his estate, and had actually
transferred to them certain moneys and shares.
Before, however, the liquidators had received the
sanction of the Court to this compromise the Court
gave judgment in the case of the Cape of Good
Hope Bank (in liquidation) v. Bast, Runoiman,
and ethers ("Cape Times" Law Reports. Vol.
I, page 73), and the liquidators being desirous ef
retaining their rights against past shareholders,
who had transferred their shares to the respondent
declined to accept the assignment and applied for
the final sequestration of the estate.
Sir T. TJpington, Q.C., in applying far discharge
of the order, contended that the liquidators were
estopped from repudiating the agreement into
which they had entered with respondent, and that
they should be ordered to complete the transaction.
Counsel further contended that the general body of
creditors could in no way be benefited by the
sequestration of the estate.
The Chief Justice remarked that the case was
peculiar. The liquidators had entered into an
agreement with Mr. Deneys to accept an assign-
ment of bis estate in settlement ef their
claims against him, but before the transaction had
been finally ooncluded judgment was given in the
case of the Cape of • Good Hope Bank (in liquida-
tion) v. East, Runchnan and others. To effect suoh
a compromise as the present the sanction of the
Court was necessary, but this sanction had not
been obtained and consequently there was no bind-
ing agreement between the parties. Again, no
actual deed of assignment had been executed, and
under all the oircumstances of the case he was of
opinion that the liquidators were not estopped
from now applying to the Court f er sequestration
of the estate. He failed to see that the defendant
had been injured by the circumstance that there
had been already an assignment, there was no
denial that the estate was virtually insolvent, and
it could make no difference to Mr. Deneys whether
his estate was sequestrated or assigned. The
liquidators had a legal right to ask for the seques-
tration of the estate, and consequently the pro-
visional order would be made absolute with costs.
Mr. Justioe Buchanan, in concurring with the
judgment of the Chief Justioe, remarked that
agreements between liquidators and shareholders
or others must in their very nature be provisional,
and that until the sanction of the Court had bean
obtained they oould not be valid.
SAABIOHT V. BOBEBT80N*
On the motion of Mr.Castems, the final ad judical
tion of defendant's estate was ordered.
SMITH V. GLUOKMAN.
On the application of Mr. Maskew, provisional
sentence was granted for £168, less £100 paid on
account.
WHITE, MULLEB AND GO. V. COHEN.
On the motion of Mr. Casteas, provisional sen-
tence was granted for £87 14s. lid.
BIBBBY V. BABNABD.
Mr. Watenneyer moved for provisional sentence,
under Rule 829, far £69 8s.— Provisional sentence
granted.
WILLIAMS V. SAMUELS.
On the motion of Mr. Melteno, provisional sen-
tence was granted for £80.
ANDEBSON AND MUBIBON V. THE OMABUBU
GOLD-MINING COMPANY.
On the application of Mr. Schreiner, provisional
sentence was granted for £212.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was 'granted i Stephanus
Francois du Toit, Johannes Christian Henning,
Johannes Jacobus Norval, Petrus Jacob Christian
Mostert, Gysbert Albertns Tiberius Neaar, Simeon
Hyams, Pieter Daniel Cronge, and Richard John
Berry.
GENERAL MOTIONS.
TAYLOB AND 8YMOND8 V. 80HTTNKE.'
Mr. Searle, for the applicants, applied for an
order to make the award of the arbitrators a rule
of Court, and for the delivery of a bend entered
into as seourity for costs.
Mr. Scbreiner, who appeared for the respondent,
consented, and the award was made a rule of
Court.
84
DESSAUER Y. DE8SAUER.
On the application of Mr. Bead©, the rule nisi
was made absolute dissolving the marriage sub-
sisting between the parties.
THE PETITION OF PUBDON 6MAILE&.
On the motion of Mr. Webber, the rule nut was
made absolute for the registration in petitioner's
name of a certain lot of ground situated in the
village of Seymour.
RIDDBLL V. BIDDBLL.
On the application of Mr. Graham, the rule nisi
was made absolute dissolving the marriage be-
tween the parties. — Mr. E. R. Syfret was
appointed reoeiver to effect a division of the joint
estate— coata te be paid out of the wife's share.
FORREST V. OHLBSON'S CAPE BREWERIES.
Mr. Schreiner and Mr. Graham appeared for the
applicant, and Sir T. Upington, Q.C., and Mr. Juta
for the respondent company.
This was an application for an interdict to re-
strain the respondent company from obstructing
or interfering with the continuous and uninter-
rupted flow of water from the Newlands Spring
over the company's property to the Liesbeek
River.
The Chief Justice said that from the affidavits
whioh he had read the applicant's mill appeared to
be worked more by steam than by water, fie was
of opinion that the matter could not be disposed
of on motion ; an interdict would not be granted,
the parties could bring an action, and if the appli-
cant had sustained any damage he could prove for
it. Costs to abide the event.
CAPE CENTRAL RAILWAYS (IK LIQUIDATION).
Company in liquidation — Sale of Company's
assets — Confirmation — Proceeds to be sub-
ject to order of Supreme Court.
Mr. Schreiner appeared for the liquidator
Sir T. Upington, Q.C., and Mr. Juta for Mr.
John Walker.
This was an application for the sanction of the
Court to the sale, by the reoeiver and liquidator
in England, of the property of the company, with
power to effect transfer and carry out oertain
agreements in connection therewith. It appeared
from the affidavit of the English liquidator that
the terms of purchase were £170,000, viz., £80,000
cash, £50,000 in preferent shares and £40,000 in
ordinary shares. No change would be made in the
terms of sale except that they would be a little
more favourable to the purchaser, and in considera-
tion of this the confirmation was postponed till the
28th May. The applicant further prayed that the
money should be deposited in the Bank of Eng-
land.
Mr. Juta read an affidavit sworn to by Mr. John
Walker, who objected to the confirmation of the
sale on the grounds that a better prioe could be
obtained, and that the property was at present
under offer to the Colonial Government.
Sir T. Upington, Q.C., for Mr. Walker, con-
tended that the sale should not be confirmed, or
that if it were, the money should not be deposited
in the Bank of England, but in the Standard
Bank.
The Chief Justice, in delivering judgment, said
that the last time the matter was before the
Court there were two circumstances whioh pre-
vented the Court from granting the confirmation
asked for. The first was that it was not by any
means clear that a better offer could not be
obtained. Plenty of time had been given Mr.
Walker to produce a purohaser willing to pay a
larger sum, but he had failed to do so. The
second circumstanoe was that it had not been
shown to the Court that if the sale were sanctioned
it would retain control over the assets in the
event of Mr. Walker's being able to prove that
he had a preferent claim. These difficulties had,
however, now been removed by the action of the
English liquidator, in expressing his willingness
that the money should be lodged in the Bank of
England, in the joint names of himself and the
Cape liquidator, to abide any further orders of the
Supreme Court. The Court would therefore
grant the application as prayed for, the money to
be paid into the Bank of England, subject, how-
ever, to any further orders of this Court. The
oosts to be paid out of the assets of the company ;
Mr. Walker, however, to pay the oosts of to-day.
CLAREMOXT, RONDEBOSCH, AND MOWBRAY
MUNICIPALITIES V. OHLSBON'B CAPS
BREWERIES.
Interdict— NuiBance— Brewery Refuse.
Mr. Searle, on behalf of the Municipalities,
applied for an interdict restraining the respondent
company from discharging refuse matter from the
Anneberg Brewery into the Liesbeek River, or
into a certain open drain leading to the said river.
Mr. Searle, in applying for the interdict, dwelt at
great length on the danger to publio health result-
ing from the discharge of the refuse and the
pollution of the Liesbeek.
Sir T. Upington, Q.C., with whom was Mr*
Juta, whilst admitting that the refuse from the
brewery had a most offensive odour, assured the
84
Court that the respondent company had done
everything that modern science could suggest to
abate the nuisance. Fresh experiments were now
being tried, and it was confidently hoped that some
substance weald be discovered which would
neutralise the offensive character of the refuse.
The place that was most complained of was the
bridge, and if the Municipality would give the
respondent company permission they would lay
down pipes at this particular place, and through
them carry the refuse to the river.
The Chief Justice said the matter had better
stand over till the August term. If by that time
the nuisance had not been removed the Municipali-
ties could bring their action, but if in the mean-
time the nuisance continued to be so great as had
been described in some of the affidavits a fresh
application could be made to the Court.
ttir T. Upington assured the Court that every
possible measure would be taken to remove the
cause of complaint.
PETITION OF THE STANDARD BANK.
Mr. Searle moved for leave to attach a certain
piece of ground known as High Constantia ad
fundandam juris diet ionem of this Court in an action
for debt to be instituted against one David J.
Pullinger, a resident at Johannesburg.
Property ordered to be attached, and leave given
to sue by edictal citation.
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION).
On the application of Mr. Schreiner, the rule
nisi was made absolute cancelling three mortgage
bonds passed by Charles B. Nicholls and his wife
before the Registrar of Deeds in King William's
Town in favour of the said bank.
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION).
On the motion of Mr. Juta, permission was
given to the liquidators to close the bank's premises
at Bast London and other places, and to destroy or
otherwise dispose of the books and other docu-
ments of the bank relating to transactions prior
to the year 1883.
THE PETITION OF DAVID H. OLIYIEB AND
OTHERS.
On the application of Mr. Searle, the rule nisi
was made absolute for the correction of a certain
deed of transfer relating to the place Heimen's
River, situated in the district of Oudtshoorn.
WE8THUYBEN V. HEYN8 AND OTHERS.
Mr. Tredgold applied to have the award of the
arbitrators between the parties concerning the divi-
sion of the water of the farm Keudouw made a
rule of Court.
Mr. MoLachlan consented, and the application
was granted.
THE PETITION OF GEOROINA GLADSTONE.
On the motion of Mr. McLachlan, leave was
given the petitioner to sue by edictal citation
in an action against her husband for restitution of
conjugal rights, failing which for divorce
SUPREME COURT.
TUESDAY, APRIL 14.
[Before the Chief Justioe (Sir J.H. DE VlLLIBRS)
and the following special jury: Messrs. H.
Boaloh (foreman), R. Maxwell, B. Phillips,
J. R. Ross, H. D. de Koch, W. McKenzie, J.
A. Neethling, J. C O' Riley, and H. Hall.]
WALKER V. THE GAPE CENTRAL RAILWAYS
COMPANY, LIMITED, (SIR T. C. SCANLEN,
OFFICIAL LIQUIDATOR.)
Declaration of rights — Private Railway Com-
pany in liquidation — Director — Agent —
Contractor — Lien — Shares — Debentures
— Preference — Registration — Accounts —
Damages — Costs — Remuneration of Jury.
In this case (Sir T. Upington, Q.C., with Mr.
Juta, appeared for the plaintiff, Mr. John Walker ;
and Mr. Schreiner and Mr. T. L. Graham for the
defendants, the Cape Central Railways Company,
whose official liquidator in the Colony is Sir T. C.
Soanlen, M.L.A.
Sir Thomas Upington said, in opening the
oase, that the plaintiff in this actien was Mr.
John Walker, who was resident at Mow-
bray within this colony, and the defendant Sir
T. C. Scanlen, who was a mere formal party,
being sued simply in his capacity as official
liquidator of the Cape Central Railways (Lim-
ited), an English company, which, as he
should point out, was established in England for
the construction of the Cape Central Railways*
The case originated in this way. In the year 1883
a Bill was passed by the Legislature of the Colony
authorising the Cape Central Railways Company
to eonstruct a line of railway from Worcester to
Robertson. Subsequently the powers were ex-
r *
86
tended for the further construction of the line from
Robertson to Ashton, on the way to Swellendam.
In obtaining the passage of the Bill and in con-
ducting the affairs of the company Mr. Walker was
the moving figure. He was in this colony and did
the whole work in connection with the passing of
the measure. The Bill passed, and it became in-
cumbent upon the company under its provisions to
make a commencement of the works on or before
the 27th September, 1884. It appeared that the
gentlemen who represented this company in London
were not in a position — (the members of the jury
would remember that at that time the financial
affairs of the Colony were not in a very good state)
— to procure the necessary funds to carry on the
works. If on or before September 27, 1884, they
had not made a commencement their powers would
have lapsed, and accordingly they adopted the
judioious course of getting a few miles of the rail-
way constructed for the purpose of retaining the
powers under the Act. Subsequently it was
discovered that these gentlemen were not
in a position to finance the affair, and
towards the end of 1884 the works were
stopped fer want of funds. Then came a com-
plication. A dispute arose between Mr. Walker,
who was the original agent in the Colony for the
oompany, and the company themselves, as to some
of the modes of preoedure which they were
adopting with regard to the issue of founders'
shares, to which Mr. Walker objected. The
company, however, went on its way, with the
result that in February of 1886 the company
dispensed with the services ef Mr. Walker. They
did not seem to better their position by that, how-
ever ; in fact, they went from bad to worse, and by
a minute of the directors, dated December 9, 1886,
the resolution dispensing with the services of Mr.
Walker was rescinded, the company taking him
back, and depending upon him for the purpose of
carrying the scheme through. After this, the
aooounts of the oompany were looked into, and it
was found that they were hopelessly insolvent, the
result being that Mr. Walker was obliged to oqme
forward with a sum of £6,000, which his friends
supplied him with, for the purpose of paying
off the pressing liabilities of the company.
Mr. Walker then entered into a oontraot with the
oompany on the 29th December, 1886. After ex-
plaining the oontraot in detail at great length,
counsel went on to say that the quantities priced
eut were £213,000, but Walker was to receive
£266,000 fer doing the whole of the work. He was
to receive £126,000 in shares or debentures of the
oompany, bearing interest at the rate of £6 pet
cent, per annum, £76,C00 in cash, being the amount
of the subsidy given by the Cape Government to
the oompany, and £66,000 in preference shares of
the oompany. The directors of the oompany, who
were really the parties now interested in the action,
were gentlemen placed upon the Board for the pur-
pose of financing this business. They might be
called the financiers, whilst Mr. Walker was the
contractor. Two of the original directors were
moved off the Board to allow three nominees of the
London financiers to come in, one of these being a
partner of Mr. Behr, the offioial liquidator of the
company in England, who was really
the moving party in the whole of this
suit. These directors were themselves per-
sons, in regard to at least three of them, who
were interested in the supply of material to this
line of railway, upon a contract which gave them
the very neat allowance of 12& per cent, com-
mission. The financiers were also to
receive 12$ per cent, for the money
they advanced. Such being the position of affairs,
these gentlemen, who were financiers and
merchants of the City of London, and no fools,
had accounts before them from time to time as to
what was going on in this country with regard to
the affairs of this contract. Various balance-sheets
were presented and passed, and finally an account
was framed in April, 1888, as between Mr.
Walker and the oompany, whereby it
was found there was due te Mr. Walker
£187,018. A meeting of the directors was held, an
account was presented, and the oompany admitted
its liability te Mr. Walker for £187,018. These
merchants now said they were foolish people who
did not know what they were doing when they
passed the account. They said they desired to re-
open the case, and that the account they passed
in 1888 was not true and correct. Accordingly,
in December of 1888, they passed a
resolution rescinding the passing of the account in
April previous without giving any notice to Mr.
Walker whatever, and it was now sought to strike
out oertain items in the account. These were the
salient points of the case. There were 47 issues
raised, but the practical points in dispute were
few and easily understood.
The Chief Justice said it was a pity the issues
had not been reduced. There were 67 at first,
but he had got them reduced to 47. Still it was
a farce to put 47 issues before the jury. It would
be utterly impossible for him to explain 47 issues
to the jury, for before he reached the twentieth
they would have forgotten the first.
Mr. Sohreiner : It's not our fault. I don't know
what the issues are now.
Sir Thomas Upington: I don't think you do*
Proceeding, counsel said that the plaintiff made
another claim for damages sustained by the oourse
the company had taken with regard to him.
Instead of getting 8,000 fully-paid-up shares as he
was promised, the unfortunate Walker was placed
on the list of contributories to the oompany in the
sum ef £38,060 for shares.
Mr. Boaloh (foreman of the jury) said that the
87
were very mystifying to the jurors. Could
there not be tome redaction ?
Mr. John Roes, another juryman! laid that it
would take an accountant six months to go through
all the accounts.
The Chief Justice said that the jury would hare
to do their best and take the papers to their room,
and consult as to the verdict. The case was not a
proper one to come before a jury at all, and it
was a pity the issues had not been reduoed.
Mr. Schreiner said that the defendant did not
demand a jury.
The Chief Justice said that if counsel had put
their heads together he thought the issues could
hare been simplified.
Sir T. Upington : The issues were submitted by
the other side.
The plaintiff, Mr. John Walker, then went into
the box, and was examined at great length by Sir
T. Upington. He went into the accounts in detail,
sad corroborated the opening statement of oounsel.
After the adjournment for luncheon,
The Chief Justice inquired if Mr. Walker was
the only creditor of the company ?
Mr. Schreiner said that there was a claim by the
debenture-holders, but except for that the out-
standing debts were of no great importance.
The Chief Justice asked if anything had been
done in the direction of reducing the issues raised ?
Sir T. Upington said he was sorry to say that
his learned friend had dene nothing except agree
to the abandonment of one issue.
The Chief Justice remarked that he should
have thought, if oounsel had sat down for
half an hoar and gone over the matter, they could
have greatly reduoed the number of Irenes. The
Chief Justice then went through the issues one by
one, and, by consent of oounsel, nine of the issues
were struck out of the pleadings. His Lordship
remarked that the object of issues was to simplify
the. pleadings, bat in the present case the issues
had the effect of rendering the case more and mere
complicated.
Mr. Walker's examination in chief was then pro-
ceeded with by Sir Thomas Upington. The cross-
examination by Mr. Schreiner was in progress when
The Court adjourned till Wednesday.
SUPREME COURT.
WEDNESDAY, APRIL 15.
(IN CHAMBERS).
Before Mr. Justice BUCHANAN.]
On the motion of Mr. Searle, Mr. William V.
Morkel was admitted to practise as an attorney
•ad notary public
[Before the Chief Justice (Sir J. H. DB VlLLIBRfl)
and a speoial jury.]
WALKEft V. CAPE CENTRAL RAILWAYS— (SIR
T. C. 8CANLEN, OFFICIAL LIQUIDATOR.)
The hearing of this case was resumed. The
plaintiff was again represented by Sir T. Upington,
Q.C., and Mr. Juta, and the defendant by Mr.
Schreiner and Mr. T. L. Graham.
The cross-exami nation of the plaintiff (Mr. John
Walker) was continued by Mr. Schreiner. Witness
said that to a certain extent the contract was
speculative, and he was allowed a margin of profit
on that account Before the contract was entered
into he did not undertake to settle with Firbank
A Co for £4,000. He had read the evidence of
Mr. Cooper on that point. The extra 2} per cent,
in the contract was put there because he had to
make a large payment to Belf out of his own
pocket, and not in order that he should pay Fir-
bank. It was utterly untrue that he had agreed
to pay out Firbank A Co. He was liable under
Schedule B, for engineering expenses, £7,500 ; he
did not see that Cooper's debentures were debited
to that account with £7,500. Cooper was paid
partly in cash and partly in debentures.
He got £8,000 in debentures at one time, and
£1,200 at another time. Witness did not issue
these debentures to Cooper, and the £4,200 was
really owing to him by the company. The
accounts were made out from information supplied
by the oompany itself. The oompany had put the
item in the books, and it was responsible, not Mr.
John Walker. He did not admit having over-
charged £4,200, but he agreed that the debentures
issued to Cooper were part of the issue of £125,000.
He had not charged the £4,200 twice over. The
debentures issued to Cooper were part ef the
£125,000, as he said, but they were not issued to
witness. He must have paid the £4,200, because
it figured is the company's books. He must have
provided the £4,200, but he could not say to whom
it went.
The Chief Justice : Then you say he has charged
the item ot £4,200 twice over ?
Mr. Sohreiner : Exactly so, my lord, from his
evidence to day.
The Chief Justice : How can it be said that you
paid this £4,200, Mr. Walker, if the oompany
paid it ? You charged the oompany with over
£7,000 for engineering fees, and it is for you to
show how you paid it. If the oompany paid
£4,200 of this £7,000 how can you oharge for the
full £7,000?
88
Mr. Walker: Your lordship will loek at it in
your own way.
In farther cross-exam ination by Mr. Sehreiner,
the witness said he had no agreement with Fir-
bank except to bny back his debentures. When
he went Home in 1887 Mr. Cooper had got a
garnishee order for £1,600, and Mr. Cooper would
not take the money in debentures unless witness
would undertake to redeem them immediately.
Firbank's agreement was with the company, but
of the £6,000 witness provided in the early days of
the company £1,600 went to Firbank, that was
clear. He positively asserted that the only agree-
ment he had with Firbank was dated December
1886, under which he undertook to purchase Fir-
bank's debentures. The company knew nothing
about his agreement with Firbank. It was true
that it was referred to in two minutes, but at a
meeting at which the company's solicitor was
present the words " Walker's agreement with Fir-
bank" was crossed out and " company's agree-
ment" inserted in place. This took place January
19, 1887. He did not admit that this referred to a
separate agreement between the company and
Firbank. Under two orders of the English Court
£2,600 debentures were issued. In the terms of
the oontraot he took £1,600 in debentures from
Cooper and gave him cash in order to save the
company from being wound up. The garnishee
order which Cooper had was fer £1,600 in cash,
and he would have wound up the company
if witness had not paid the £1,600. He oould
not say that the action by Cooper was
against the company. He could not have pro-
ceeded with the contract at all without
assistance. The railway was a venture like, most
things is this woild. It was not risky but a
perfectly safe investment, and he claimed that
events proved it. The syndicate were likely to
get their money back twice over even if he won
this case. He did not say that the obligations to
debenture-holders would be satisfied. That would
depend upon his (Mr. Schreiner's) ooBts and
others His case was that the financiers
would get their money back again and good sub-
stantial interest He oould have easily got other
help for the project than that which he did get.
The financiers had insisted upon taking £76,000 for
a debt of £60,000, although the £60,000 included a
handsome profit. These gentlemen as the directors
had appropriated £76,000 worth of debentures for
£60,000 of debt, and that was what he complained
of. The £76,000 from the Cape Government passed
into the hands of trustees for payments from time
to time as the work progressed. After he had
entered into the oontraot he returned to the Cape,
having made financial arrangements. Two miles
of the workfof Firbank had to be done all over again.
Work to the value of £8,000 was credited to Fir-
bank. When he was in London he saw that there
was some " hanky-panky " about it, and it
agreed that the work should be remeasured.
Mr. Sehreiner : You are familiar with that sort
of thing ?
Mr. Walker : No, but I saw there was something
wrong. Witness went on to state, in continued
oross-examination, that £8,860 was set down for
Firbank's account. Firbank had done certain
work, which witness advanced the money to pay
for, he receiving in return, from the company, £100
of debentures for every £60 he paid to Firbank.
The payment to Firbank was not allowed in
Cooper's final certificate of £209,000, although
Cooper had said that it was. Cooper made out
two certificates, both of whioh were faulty in this
particular. The £8,860 figured in the company's
books several times, both to witness's debit and
credit. Fairbanks total excavation was only
13,000 oubic yards. His oase was that until the
final accounts whioh the directors first passed,
the item of £8,860 was never fairly credited to
him. He utterly denied that the item was put in
twice over. Under Schedule A he was entitled to
claim for steam freight.
Sir T. Upington : This is no part of the issues
raised.
The Chief Justice : If it is not contained in the
issues I certainly rule that it cannot be put.
Mr. Sehreiner said that the witness had raised
several issues of credit between himself and Mr.
Cooper, and the point was important Would the
Court allow an amendment of the pleadings ?
The Chief Justice : Certainly not.
Cross-examination continued : Mr. Harris was
a chartered accountant, and witness gave him
certain information regarding the accounts. The
direct information was given by the chairman, Mr.
Hazlehurst.
Mr. Sehreiner : Mr. Haslehurst was not called
in England ?
Witness : No, you said you would call him, but
you did net dare do it
The Chief Justice : Mr. Walker, you must
answer the questions put to you,
Mr. Sehreiner : Would Mr. Haslehurst join
with yen in the new scheme you got up ?
Witness : Nu, he was a shipbroker.
Mr. Sehreiner : Well, the other gentlemen
were not railway contractors, Mr. Walker. Now
was not the company really Walker ?
Witness : No, they turned me out of the meet-
ings when they discussed the accounts.
Mr. Sehreiner : But you had really carte blanche
with regard to the work, and the company was
practically Walker?
Witness: Certainly not, sir. Continuing, he
said that the resolution rescinding the payment
of his aooount was passed upon Cooper's recom-
mendation. Mr. Cooper's final certificate was
made out upon the basis of the very accounts wit-
89
nest now sued the company upon. There was a
conflict of testimony on that point between Cooper
and hinueif. Witness's accounts were submitted
to the company at a general meeting of the
shareholders, and they were passed in their pre-
sent form, shewing a balance of £187,018 due to
him. That was in April of 1888, at a general
meeting immediately after a meeting of directors.
Shortly afterwards witness left for the Gape,
where he was gazetted as the representative of the
company. His accounts were passed, and his posi-
tion as contractor ceased. Then he was appointed
a special director to go to the Cape to try and sell
the line to the Cape Government. There was no
special mission. He was coming home to the Cape,
and agreed to try and sell the line, which was then
hardly finished. On April 20, 1888, witness sent a
letter to the company, suggesting the closing of
his contract from the end of the previous year.
Five days later he received a note saying that his
accounts were passed, that the directors agreed
that his contract should cease from 81st December,
1887, and that he was to proceed to the Cape as
director to sell the line. At the same time, he had
to finish the stations and outbuildings, in his
capacity as contractor.
The Chief Justice : How could he fill these two
capacities? Continuing, his lordship said that
the really important point seemed to be whether
or not the plaintiff had a lien on the company's
property after the sale had been authorised to the
Cape Government. It was questionable whether
he could come in as a preferent or concurrent
creditor. There was £80,000 to be distributed in
cash, looking at the cash alone as an asset, and if
this was to be distributed to the debenture-holders,
a few thousands more or less to Mr. Walker did
not seem to make much difference. What was the
total amount of debentures ?
Mr. Schreiner: The total issue of debentures
was £125,000.
The Chief Justice : If the £80,000 were dis-
tributed, I expect there would be a pro rata
distribution.
Mr. Schreiner : One of Mr. Walker's claims is
for £83.000 for damages.
The Chief Justice : The letter seems to show
that Mr. Walker gave up the line as contractor
and took it over as agent. Where then is the lien ?
Is that one of the issues for the jury ?
Mr. Schreiner: No, my lord. *
The Chief Justice : But there is one issue as to
whether he did or not actually give up the line.
Mr. Hchreiner : That is so.
The Chief Justice : This letter shows that Mr.
Walker was anxious to get rid of his dual capacity.
He wished to be agent alone.
Sir T. Upington said that the company was
asked to take the line over subsequently, but
refused. As a matter of fact, Mr. Walker after
V
his return to the Capo continued to do the work
of a contractor, only that he had no profit. The
company did not take over the line when it was
tendered to them.
Mr. Schreiner : My friend refers to the fina
completion of the line.
Witness then stated, in further cross-examina-
tion, that he collected the revenue of the line,
putting in accounts from time to time. Those
accounts explained his payments of interest at
intervals. He provided cash to pay off the deben-
tures as they were presented. He did not call
that providing an account, but it was paying cash,
which was very much better. He paid the deben-
ture-holders all their interest to August 1, 1888.
The traffic receipts did not furnish all the money,
but he paid the rest out of his own pocket. He
was aware that in England there had been filed
olaims amounting to £18,000 for interest, but he
did not admit the genuineness ot those olaims. He
had only had issued £111,000 debentures, and had
not made the admission that he had received
£118,000. He stated on his declaration that he
had received £79,660 debentures, but that was a
mistake, as only £72,000 were issued altogether.
He had given the company credit for more than it
had issued. He believed that the whole £126,000 de-
bentures had been issued, but not to him. Of the
debentures £6,860 were exchanged for old deben-
tures, £4,000 went to Pirbank, £4,000 to Cooper,
£1 ,600 to Harris, and possibly one or two more.
These were not issued for his account or benefit.
The £6,360 debentures were issued for the benefit of
Slade and others. They were issued prior to his con-
tract. He never engaged Mr. Harris, the accountant,
and never agreed to pay him, and neverdid pay him.
He was paid in cash and debentures, and witness
arranged the transaction, but only at the wish of
the company. If Harris said that he was engaged
and paid by witness, he was fabricating, though
witness did not like using such severe language.
It was a clear case of conflict of testimony between
Harris and himself. He had objected, in a letter
to Sir Thomas Soanlen, to the issue of some thou-
sands of debentures to various directors, on the
ground that those gentlemen had received the
shares fraudulently, and he still said that the issue
was fraudulent. His agent was party to the issue,
but he declined to admit that he (his agent) con*
suited him as to the details ©f the matter. He
had not followed Mr. Behr's evidenoe all through,
because Mr. Behr started from wrong premises
entirely. The company was bound to issue
£126,000 debentures to him, but it did not do it.
At the same time, it was net absolutely fixed that
he should be paid entirely in debentures. He
could receive part in cash.
After the adjournment for luncheon the cross-
examination was resumed. Witness said he had
gone into the books during luncheon time, and he
90
found that with regard to £1,260 for London office
expenses in his account, it was not made out by
him, but he provided the cash for it. Amongst
debentures issued in exchange for old debentures,
a number went to the directors in exchange for old
ones, but it was not true that the directors in the
first instance paid for the old debentures. His
contention was that the old debentures were issued
without the company receiving any consideration.
They were for directors' fees and other expenses
of that nature. He bad got 82,880 shares, but he
refused to give credit for them, because when
he received them he believed they were fully paid
up, whereas, as a matter of fact, nothing had
been paid upon them, and he had been placed on
the list ef contribute ries in regard to them. He
had received no fully-paid-up shares. He accepted
the 82,880 shares as fully paid up, firmly believing
that he was responsible for no payments upen
them. He was not the promoter of the company,
but merely the agent.
The Chief Justice said that as at present advised
he should direct the jury te find that the plaintiff
had accepted the 82,000 shares as fully paid up.
The liquidation proceedings altered the plaintiffs
position.
Sir T. Upington said that the company had con-
tracted to supply 32,330 fully-paid-up shares, and
had not done so ; therefore the company was liable
for the neglect.
The Chief Justice was of opinion that the
plaintiff had accepted the shares as fully paid up.
Witness stated that had he had the shares by
the time mentioned in the contract he could have
sold them easily ; in fact, he did sell a great
number. He blamed the company for wilful
delay in the delivery of the shares. He had dealt
in seme of the debentures, but the purchasers
clearly understood that the shares were nothing
more than acknowledgments of debt. He did not
think there had ever been a time when the share-
holders of the company could have received a
penny dividend upon net profits after the first
preferent charges had been borne. Ordinary
shares came after preferential, and at the time his
shares should have been issued it could not be said
but that there would be a good dividend upon even
the ordinary shares. He had not brought his claim
against the company in liquidation to any test in
England. He had offered to Sir T. Scanlen to sub-
mit his claims to arbitration. He had rendered a
former claim to Sir T. Scanlen, and very likely the
present claim might show an increase upon that.
The Chief Justice inquired if the company had
made a tender to the plaintiff ?
Sir T. Upington : None whatever, my lord
Mr. Sohreiner said that the company admitted
that 1,600 shares were due to the plaintiff.
The Chief Justice asked if there had been a
money tender ?
Mr. Schreiner said ne, the liquidator having been
unable to make any. The company desired to see
Mr. Walker's proofs.
Witness stated that one of his claims for
£10,000 for eccupatien of his private property had
been dropped before the commencement of the
present action. Mr. Ridings was sent out to the
Cape by the oompany, and although a syndicate of
London financiers said they would pay his
expenses they were debited as a fact to witness.
The company was unable to pay Ridings the £860
he claimed, and witness's friends paid him. He
now sought to recover that amount. His claim
was outside the contract altogether, but he paid it
to prevent the company becoming insolvent. It
was a case of Hobson's choice, and he paid the
money. Witness explained the appearanoe of a
claim by Messrs. Davis, solicitors, against the
company in his case, by the fact that he was asked
by the directors to pay the sum in question,
£162 10s. He could not find the exact
item of £162 10s. in the company's books,
but he deoidedly paid it on the company's
account. Witness paid a number of other
sums, particulars of which he entered into, on
behalf of the company, to save legal proceedings.
He was not aware that his claim as a director had
been filed with the official liquidator in England.
He was te receive £800 a year as agent. He had
to work the line, and claimed to have saved the
company several thousands of pounds during the
time he managed the concerns. He considered
that he was worth £800 a year as agent in addition
to £500 for special services as a director.
The Chief Justice said he considered that the
£800 a year salary in an important position like
that of agent was not excessive.
Mr. Schreiner said that under the articles of
association a director proceeding abroad could be
given a special reward, but only by resolution,
and in this case there had been no such resolution
passed or proposed.
Witness said that the item of £200 for office
expenses at the Cape was for the rent, Ac., of his
office. His office, he explained, was in his own
house, the best room, and he would be glad to show
it to Mr. Schreiner if that gentleman would call
upon him. He kept the room specially for the com-
pany's work, and charged at the same rate whioh
had been allowed previously for office expenses.
His olaim for £750 for travelling expenses was
chiefly for making two voyages to England and
back, both of whioh were undertaken, however,
after the liquidation. He-went at the request of
Mr. Behr. He charged £250 for expenses in the
Colony, for going up the line. On the first voyage
he had to take his sob, and on the second his wife
owing to his state of health. He got free passes
en the Cape Government Railways, but the Bail-
way Department did not feed him.
91
Mr. Schreiner : Then the £250 is for food?
Mr. Walker: For two and a half years.
Mr. Schreiner : Then there is £50 for law. Very
moderate.
Mr. Juta : Very moderate indeed, I think.
Mr. Schreiner said that the money was spent in
opposing the liquidation proceedings, and now Mr.
Walker asked that, when he had opposed the
liquidation, he should make the liquidators pay for
it.
Sir T. Upington said that a peculiar point would
arise on that. Mr. Behr said in his evidenoe that
he never authorised Sir T. Scanlen to apply for
liquidation in the Colony.
Mr. Schreiner : Then there is £150 for cable-
grams and petties — a pretty phrase.
Mr. Walker : £106 is for cablegrams, and the
rest for sundries.
Mr. Schreiner : Where are the particulars ?
Mr. Walker : I don't keep particulars of
ahOlingB spent on cabs, stamps, <feo.
Mr. Schreiner : But surely an agent at £800 a
year doesn't charge without giving particulars ?
Mr. Walker: Well, 1 generally find that in
lawyers' accounts there is a good deal for sundries
and petty cash.
Mr. Schreiner : To whom were you cabling ?
Mr. Walker : To the company ; the cables were
sent to Mr. Ashton, and by him to the company.
Mr. Schreiner : Where are the cable receipts ?
Mr. Walker : I have been in the Oolony ten
years, and I never got a cable receipt from the
postal authorities unless I asked for it.
Mr. Schreiner : In the first account you claimed
£600 for the use of tools. In the account after
liquidation that swells to £1,000. How do you
account for that ?
Mr. Walker : There is more time to be added,
for which I charged.
Mr. Schreiner : I propose to criticise the first
amount of £600, but how in the world it swelled
to £1,000 I can't imagine.
The Court at this stage adjourned till Thursday.
SUPREME COURT.
THURSDAY, APRIL 16.
[Before the Chief Justice (Sir J. H. DE
VlLLIERS) and a special jury.]
WALKER V. THE CAPE CENTRAL RAILWAYS—
(8IR T. C. SCANLEN, OFFICIAL LIQUIDATOR.)
The hearing of this case was resumed, Sir T.
Upington, Q.C., and Mr. Juta again representing
the plaintiff, and Mr. Schreiner and Mr. T. L.
Graham the defendant.
The plaintiff, Mr. John Walker, was further
cross-examined by Mr. Schreiner. He said that
his charge for the use of materials was from
January, 1888, to April, 1889. He charged £1,000
in the latest account, but £600 in the former
account, the increase of £400 being put in because
he found he had previously oharged the company
too little. It was not true that he had charged
this item in two places. The £1,000 was simply
for the use of tools belonging to him. None of the
maintenance tools were taken over under a
former account. He had no particulars to show
regarding the cost of these tools, but the sum he
oharged was below that usually made, and less
than that oharged on the Cape Government Bail-
ways. A list of the tools in use on the line was
in the papers before the Court. There was an
item of £800 paid to Cooper, but that
was not included in the engineering account.
It was net true that the company had only author-
ised one payment of £100 to Cooper, and he
considered the company responsible for the money
witness paid to Cooper, they having sent him out
to the Cape on a special engineering visit. He
had made an overcharge of £60 in putting down
this £860 paid to Cooper. As a matter of fact, he
had paid only £800. The oompany's books only
showed the payment of £60 to Cooper, but the
financiers paid four more sums of £60 each, and
he claimed that he had been wrongfully held liable
for the' whole sum of £800, although he had
nothing to do with sending Cooper to the Cape.
The books of the company debited witness with this
£800, but he could not identify the precise items.
If the present account was overthrown there were
several fresh items to go in, among them being
witness's cash advanoe of £6,000. He had given
oredit for the whole of the revenue account, and
he now claimed that back, having paid off the
interest on all the debentures. Part of the deben-
tures were paid here, and part in London, and the
company had the particulars in its own books. His
payments of interest amounted to £1,988 16s. 9d.,
but he claimed £1,600 for traffic receipts during
the time the line was open. There was a claim of
£18,000 by English debenture-holders for interest,
but he did not admit its genuineness. His case
was that the debentures upon which this £18,000
was claimed were never issued under the terms of
his contract. In December, 1877, £77,600 of
debentures were unissued, and they were not
allotted until August, 1888. If they had been
issued so far back as May, 1887, he would have
been liable for the interest. After the line was
opened to Ashton he ceased to be responsible for
interest. He had claimed £7,600 for interest at 6
per cent, upon £137,000, for eleven months, on the
balance of his account. His case was that the
directors should have kept to their word after
passing his accounts in April, 1889. He had no
92
claim for interest upon debentures issued j n
August, 1888, because he was net liable for any
such interest. There were two items of £594 and
£828, but there had been a mistake, £2*fi having
to be taken off the £694, though there were other
items he oould add, whieh would more than make
up the btlanoe. He was not aware that another
item of £14 12b 6d. had been oharged twiee over.
There was an item of £270 for construction pay-
sheet, which represented payments he had actually
made up to the end of December, 1887. but that
sum was not stated twice over. There was a
charge for £496 for the maintenance of the whole
line during the last three months of 1887, and the
item of £270 appeared to have been included in
the £823. He claimed £100 damages for the
detention of a steam pumping engine bv the liqui-
dator. He could have sold the engine, which was
four-horse-power, for £100, but the liquidator
would not deliver it up, and now he could not find
a purchaser. The engine was lying at Ashton
on ground plaintiff claimed as his. Whilst
witness was away Mr. Syfret detained
the engine but afterwards gave it no,
whereupon, however, the purchaser deolined to
have anything to do with it, finding there was a
dispute as to the title. The engine was set
down in the inventory with the rest of the
materials. He had rendered an account supported
by vouchers, but he did not deliver up the
vouchers, though they were th*re for 8ir T.
Scanlen. A certain number of articles were taken
over by Mr. Svfret, and witness received £400 for
them, though thev were afterwards valued at
sliarhtlv less. Witness had received an account of
£120 from Dr. Stevenson for medical attendance
to the men on the line. Of this witness had paid
£80 or so, the doctor refusing to take the cnm-
panv's undertaking for the money. The
stationmaster at Robertson had been instructed
to pay witness £18 10s. on account of the medical
man's bill, and he considered he had full right to
tell the stationma«ter to do this, even though it
was after liquidation in England.
Re-examined bv Sir T. TJpington : Witness said
that the item ef £1,646 for interest from the date
of the opening to R^bert^n was charged under
his contract. He was to take the traffic earnings,
£1,646, to represent the interest he had paid on
debentures. He said that the directors ought, to
have paid his account when it was passed, and he
claimed interest because they had not done so.
When the account was made up to the end of
1887, about £12,000 to £15,000 was all that was
necessary to finish the line. He was to have been
raid £137,000 in cash debentures and shares, and
he said that the company had given him 32,880
worthless shares, upon which he had been ordered
to pay £82,330 under the liquidation.
Th« Qhief Justice asked! if th.e English directors
had stated, in the oourse of their evidence, that
they were unaware that several items had been
erroneously entered by Mr. Walker in the
accounts ?
Mr. Schreiner : Certainly, my lord.
The Chief Justice : And did they revoke the
resolution passing the aocountB when the errors
were made known to them ?
Mr. Schreiner : At onoe, my lord.
The Chief Justice said it was a legal question if
the case oeuld be re-opened after the passing of
the accounts.
Mr. Schreiner said that it was a question of
mixed law and fact, and the Roman- Dutch law
permitted a re-opening of accounts under certain
circumstances.
Re-examination continued : Messrs. Fairbridge
& Arderne were at one time agents of the com-
pany in the Colony. The line had recently been
disposed of at a large profit. He accused the com-
pany of oreating fresh capital without authority.
Regarding the engine, it was claimed and inven-
toried by the official liquidator here, although he
had no title to it.
By the Court: He became contractor in 1886,
and at once commenced rendering monthly accounts
to the company. He did that the whole time until
he left the work in 1887. The first report was dated
9th March, 1886, and the last 28th September, 1887.
Mr. Schreiner : No accounts showing the posi-
tion were ever rendered at all. Merely sum-
maries, in the shape of letters.
By the Court : He had no specimens of the
monthly accounts in court, but would obtain some
without delay.
Sir T. TJpington : I undertake to produce those
accounts, my lord.
By the Court : The accounts witness sent
were all accepted by the company, and any errors
that crept in were rectified
Mr. Schreiner did not think that accepted was a
good word, but he admitted they were received.
The Chief Justice : The question of fact is, did
the company accept Walker's account ?
Mr. Schreiner : In the sense that they would
inquire into it, but no further, my lord.
The Chief Justice : Mr. Walker, can you pro-
duce one letter in which the company acknow-
ledges the receipt of one of these accounts ?
Witness : There is a bundle of them, my lord.
The defendants have got the originals, and we
cited them to produce them, but they have not
done so. Continuing, witness read two letters of
acknowledgment from the company, of his
accounts. In one the company took objection to
an item of £500, which was rectified in the succeed-
ing account.
The Chief Justice said that, in his opinion, the
company had accepted the accounts in every sense
of the term*
93
By the Court : Payments were made by the
company en the basis of the schedules A and B,
under the contract. Whenever objections were
made, they were rectified without delay. The
shareholders in full general meeting passed the
accounts at £137,000, the directors having just pre-
viously also passed them. The letter under which
the contract ceased on December 31, 1887, was
without prejudice to his rights as contractor for
payment of the amount due to him, in spite of
the statement it contained, that his dual capacity
as contractor and agent should be deemed to have
ceased on December 31, 1887.
This concluded Mr. Walker's examination.
Sir T. Upington said he should have to argue
that the parties as a matter of fact did not agree
to terminate the contrast on December 31, 1887,
and could not have done so, because en that date the
contract was not finished.
The Chief Justice said that the letters certainly
agreed to a termination of the contract.
Sir T. Upington said he should have to argue
that that was not so, and that the plaintiff con-
tinued in possession of the line. Taking the faots,
it could not be said that there was a mutual agree-
ment to terminate the contract.
Mr. Patrick Cameron Grant, an accountant,
said he had examined the books and balance-
sheets of the company, at plaintiffs request. The
books were opened in 1886. He compared the
balance-sheet put in for 1885 with the entries in
the books, and found that it tallied. The balance-
sheet for 1886 also tallied with the books. On the
31st December, 1885, the liabilities of the compaay
were £8,268 9s. Id., including £5.o00 advanced by
Walker. Up te the end of 1885 £640 had been
paid for shares issued. According to the balance-
sheet for 1887, Mr. Walker was entitled
to £137,025, the difference of £12 being explained
by a minute. The first balance-sheet, which did
not tally with the books, was signed by Harris, the
accountant. That was not a true statement in
accordance with the bookB. He examined a
balance-sheet framed by Walker up to the end of
1887 and that was correct, in accordance with the
books, in all details. The items of £694 and £823
appeared in the cash-book of the company. He
had examined the traffic accounts of the line and
the different items were vouched, the balance
found due being £823 16s. 6d. The amount passed
to Walker in the company's books, up to the end
of December, 1887, was £211,566. By the
company's ledger of shares 868 shares
had been issued to Walker, but the general
ledger showed £32,300. The 368 shares were
traceable in the share-ledger; 330 were trans-
ferred to another person. In December, 1886,
£6,360 of debentures had been issued, £1,660
having gone te Walker. Since that date, and up
to December, 1887, £24,700 of debentures were
issued, of which Walker got £12,950, including the
£1,650 of the old issue, these being exchanged for
new ones. Then there were £95,000 issued in
trust, £25,000 to Fairbridge & Arderne on trust,
and £70,000 to certain trustees in London. Of the
£26,000 issued to Fairbridge & Arderne Walker
got £17,500, and the rest were returned te London
to the trustees there. The total value issued to
Walker to the end of 1887 was £111,200. The
debentures sent to Fairbridge 6 Arderne were in
trust for Walker. The books did not show when
Walker got the remaining £75,500. He could find
no payment made to Cooper, for a visit to the Cape,
in the books of the company. There was no trace
in the books of a medical account for the servants
of the company on the line. He practised as a
sharebroker, bur. not until 1889. He had no know-
ledge of the value of the company's shares from
his own experience.
Cross-examined by Mr. Schreiner : The share-
ledger showed the issue of shares te Ashton, Reid,
MoKinley, and other directors. He had Been
vouchers for every payment made in the books.
As an auditor he would accept an endorsed cheque
as a sufficient vouoher for the due payment of an
account. He was mistaken in stating that the
books showed no payment to Cooper, £100 having
as a fact been paid him.
SUPREME COURT.
MONDAY, APRIL 20.
WALKER V. CAPE CENTRAL RAILWAYS— (8IE
T. O. SCANLEN, OFFICIAL LIQUIDATOR.)
The hearing of this case was resumed. The
plaintiff was again represented by Sir T. Upington,
Q.C., and Mr. Juta ; and the defendant by Mr.
Schreiner and Mr. T. L. Graham.
Sir T. Upington having put in a number of
formal documents, the plaintiff's case was closed,
and Mr. Schreiner called Sir Thomas Charles
Scanlen, M.L.A., the official liquidator of the
company in the Colony, and the defendant in the
aotion. In 1890 Mr. Walker sent in a claim, to
which witne-s xeplied, and the affidavits supporting
plaintiff's olaim were filed in September, 1890. He
knew nothing about the accounts here, all the
books being in London. The plaintiff had
furnished witness with no vouchers, but had said he
could see vouchers at his attorney's office. He had
gone through Mr. Walker's account, marked " C,"
item by item. The first item was £ 1 37,01 8 17s. 2d.,
representing the balance said by Mr. Walker to be
due to him. Witness had prepared an account
showing his view of how that £187,018 ought to be
u
dealt with. Dealing first with the oontraot account,
it started with the oredit for the whole of the work
certified by Mr. Cooper, £209,887 8s., for every bit
of werk done. That showed a total balance due to
Mr. Walker of £233,926 13s. 2d. Then he debited
Walker with the amount of the subsidy from the
Gape Government £76,000, debentures £126,000,
and shares £82,300. There was left due to the
plaintiff a balance of £1,626 Ids. 2d., payable in
shares. This excluded the two disputed items of
£3,360 and £ 16,000. Of the debentures, there were
first issued 10,800 to Walker, then 22,400 also to
Walker, then 77,600 which passed to the trustees
appointed to receive them for the purposes of the
company. Mr. Walker said that another 2,160
were in addition issued to the trustees, but that
was not se ; the 2,160 were 48 debentures of £60
each, and he held Walker's receipt for them. The
further issue of debentures, to persons already
named to the Court, brought the total to 126,000.
Of the debentures for £160, issued to Harris, it was
proved by the books that they were issued on account
of Walker, and the same was true of those issued
to Johnson The issue of debentures to Harris
was credited to Walker, under the head of
sundries, for which a charge of £3,000 odd was
made, and the issue to Johnson was comprised in
the item for printing and stationery. He knew
nothing of the arrangement with Firbank & Co. in
England, but he found that 4,000 debentures were
issued to them. From correspondence whioh
passed between Tomlin, the secretary of the com-
pany, and Walker, it seemed that the debentures
to Firbank were issued on account of Walker.
There was an account in the ledger for engineering
fees. In that aocount there was an item of £600
brought into the total of £7,000 odd, and from the
evidence of Cooper it appeared that this £600 was
paid to Walker in debentures. The engineering
aocount gave Mr. Walker credit for all the deben-
tures issued to Cooper. In one aocount plaintiff
debited the company with £2,700, directors' fees,
£2,000 of this being for money paid prior to his
contract From the books he clearly traced the
issue to Mr. Walker of the £6,860 old debentures
whioh that gentleman denied were issued on his
account. He traced every debentnre of the 126,000
to be issued either to Walker or on his account.
With respect to the item of interest, £1,646, no
voucher had been given for it, and he could not trace
it in the books. Mr. Walker said that the sum was
for surplus over traffic earnings, but if so, then the
salary due to Walker for the period covered must
be deducted, if any suoh salary were due to him.
He had never had a vouched account from Walker
of his dealings with the company's
property after he took it over, and it
was impossible for witness, as matters stood,
to verify the accounts of Walker. On the contract
aocount whatever was due was payable in shares.
The 77,600 debentures to trustees were issued at
various times, as the certificates were framed, but
all by August, 1887. In August, 1888, there ap-
peared to have been an adjustment. As the works
were from time to time certified, debentures were
issned by the company to the members of the
syndicate. In England £18,000 for interest was
claimed upon these very debentures which Mr.
Walker claimed interest upen here. There was an
item of £270 Is. for construction pay-sheet, for
which he had no vouchers, and that appeared to
have been twice charged if it referred to work
done during the previous month. An item of
£162, due to Davis A Sons, could not be traced in
the books as due for any work done for the benefit
of the company, and he had seen acceptances for
this sum, signed by Walker in Davis 4 Sons'
favour. A sum of £39 Is ., due to Fairbridge &
Arderne for law costs, seemed to be charged in
two places, the same remark applying to a pay-
ment of £18 to Jansen, Cobb & Co. An aocount
of one Bayliff, £40 14s. 10d., was also brought up
as a second charge after being put in a former
account. With regard to Riding's acoount of
£1,100, he could not find that it was authorised by
the company. Of Cooper's acoount, £400
was transferred to the item for engineering
expenses. All that the company authorised for
Cooper's expenses was a sum of £100 and
a draft for £120 for personal expenses.
Mr. Walker had claimed £126 for directors' fees.
As to travelling expenses, he had never, as liquida-
tor, authorised Mr. Walker to spend money in
travelling on behalf of the company after the
liquidation. £1,000 was charged for the use of
tools and maintenance, but witness had no vouchers
at all for it, and it was originally set down by
plaintiff at £600, afterwards being swelled to
£1,000. As a fact, Mr. Walker was only on the
share register for seven ordinary shares, he having
transferred the others he had received. Mr.
Walker's rights for the debentures he held had
never been disputed. Plaintiff had charged £2,060
for twenty-one debentures, instead of £1,060, but
whatever debentures plaintiff produced he would
be ranked fer. At the time of the
liquidation of the company in Eng-
land witness was in possession of the
line under Mr. Walker's power of attorney, so that
really he had held possession ever since plaintiff
went away to England, first as holding Walker's
power, and then as official liquidator. Plaintiff
gave up the line under protest, however. He could
not at present arrive at the true balance due to
plaintiff, including interest, because hitherto wit
ness had received no true and proper account of
the interest due to plaintiff, if any. The interest
aocount must be taken independently of the con-
tract account. Under the contract interest was
payable by plaintift up to the 80th September,
9A
1887, and he reqnired an account from Walker
•bowing what he had paid. The company was
never registered in the Colony as a limited
liability company. Witness contended that plain-
tiff was bound to render proper accounts, in his
capacity as special director or agent of the com-
pany. Witness was not bound to examine the
mass of accounts in possession of the plaintiff's
attorney.
Cross-examined by Sir T. Upington : What
witness called the contract account was upon the
contract between the plaintiff and the company
from witness's point of view. There was a differ-
ence of 6,600 between the debentures plaintiff
admitted receiving and the number witness said
were issued to him. On Deeember 81, 1887, the
debentures were all out, except 77,500 to the
trustees, and 2,160 issued to Walker subsequently.
With those exceptions, Walker bad the whole
issue, 46,860, which would include the old
debentures. He was not aware that Relf had
received ten bonds of £100 each. The claim for
£18,000 interest by English debenture-holden
had not yet reached witness, but when it did he
should deal with it. Witness had not wiped that
claim out in any of his reports as liquidator. On
the whole, the conclusion he arrived at was that
on the contract there was only due to Walker
£1,626. The £6,000 paid by Walker in the first
instance was a little difficult to follow, but he
appeared to have got back at onoe £1,067. In
Cooper's certificate he could not separate this
£6,000, but he believed it was included in it. In
the contract itself nothing was included to the
effect that Walker had to pay off the £6,860 old
debentures. The entries in the books were some
of them in Harris's writing, some in Tomlin's,
and some in another hand. Harris was appointed
by the company, but paid by Walker, as witness
contended.
The Chief Justice : This seems to be the most
extraordinary company I ever heard of. The com-
pany employ Harris to make an audit, and Walker
pays. Harris is desirous to get certain informa-
tion, and goes to Walker for it, and then he makes
up the accounts.
Sir T. Upington : When your lordship hears the
evidence ef the directors it will throw a wholly
different light upon the transaction.
The Chief Justice : Ton said that there was due
to the plaintiff on the contract account £1,626 Is
that the only amount due, or is there something
due on any other account ?
Sir T. Soanlen : There is nothing else due, ex-
cept anything that may be awarded him as agent.
Upon the question of interest the balance may be
either in his favour or in favour of the company.
I cannot say whioh at the present moment, my
lord, because we have never had a proper account
rendered by the) plaintiff.
The Chief Justice : But before any oontract was
entered into he paid £5,000 ?
Sir T. Scanlen : No ; it was simultaneous, I
think.
The Chief Justice : But was it a bonus to the
company ?
Sir T. Scanlen : No, it was in part fulfilment of
the obligation he undertook by the contract.
There is no section of the contract which shows
the £5,000 separately. It appears to be paid
generally, under the fourth section
The Chief Justice : But unless the balance of
£24,000 includes the £5,000, is not Mr. Walker
in all fairness entitled to this £6,000 ?
Sir T. Scanlen : I should be able to show your
lordship that some of the items included in
sundries, Cape agency, Ac, included portion of
this payment of £6,000. For instance, there was
£1,600 to Relf, which is also put under the head
of Act of Parliament. This £5,000 was given for
the purpose of discharging liabilities enumerated
in the contract.
The Chief Justice : Do you object to his charg-
ing £800 a year for his services ?
Sir T. Scanlen : No. I think it is rather high,
as your lordship only allowed me £300 a year for
managing the line.
The Chief Justice : Yes, but he would have
more work to do. Tou object to the payment of
£500 to Walker as a special director ?
Sir T. Scanlen : Yes.
The Chief Justice : What was the capital of
this company ?
Sir T. Scanlen : I believe a million.
The Chief Justice : And how many shares were
issued ?
Sir T Scanlen : 646. Mr. Walker was the only
one who got shares with the exception of the
directors, who got them from Walker.
The Chief Justice : I should like you to make
an account tracing this £5,000.
Sir T. Scanlen : I will try, my lord.
Mr. Arthur George Syfret, solicitor, and
partner in the firm of Scanlen 6 Syfret, gave
evidence that Sir Thomas Soanlen was appointed
official liquidator on July 18, 1889. After the
company was placed under liquidation in London
Mr. Walker and his claim were under discussion.
As the result of a communication witness sent him
in April, 1889, Walker went te London to try to
bring about an amicable settlement of the case.
He had frequent personal dealings with Mr.
Walker, and the latter at no time olaimed that his
travelling expenses after the liquidation would
have to be paid by the liquidator. As a fact,
Walker was in very bad health at the time the
trip to England was undertaken, and he said to
witness that it was the very thing to set him up.
While he was away witness made him an allow-
ance of £26 a month, for rent of cottages and use
96
of tanks, trolleys, Ac. There was a steam-pump
near Ashton Station which Walker's son claimed
on account of his father, but witness refused to
acknowledge the claim in the absence of full in-
formation. He did, however, inform Mr. Walker,
juci., that if he chose he could take it away, pro-
viding he did so at his own risk and peril.
Cross-examined by Sir T. Upington : The £25
per month continued for seven months, from 18th
April to November 18, as shown by Mr. Walker's
receipts. Under the inventory i everything found
upon the railway was included, and he did not
remember giving instructions to inventory the
goods belonging to Walker separately. He re-
collected no questions about interlocking points
and tents at Worcester, but he believed Walker
did claim some tents on the line. The tents and
cottages were not included in the £400 witness
paid to Walker. He was not aware that a good
deal of ordinary plant belonging to Walker was
still in the possession of the liquidator. There
was no demand made for the steam-pump in July
or August, 1889.
Re-examined: Many of the articles plaoed in
the inventory were afterwards specially applied
for by the plaintiff, and taken away for upe on the
Sea Point Railway.
This concluded the personal testimony, and
counsel then proceeded to read the voluminous
evidence taken on commission in England.
The reading commenced soon after two o'clock,
and had not concluded when, two hours later,
the Court adjourned till Tuesday.
SUPREME COURT-
tuesday, APRIL 21.
WALKER V. THE CAPE CENTRAL RAILWAYS—
(SIB T. BCANLEN, OPPICAL LIQUIDATOR.)
The hearing of this case was resumed, the plain-
tiff being as before represented by Sir T. Uping-
ton, Q.G, and Mr. Juta, and the defendant by
Mr. Sohreiner and Mr. T. L. Graham.
Sir Thomas Scanlen went into the box and
placed before the Court a statement tracing the
disposition of the £6,000 paid by Mr. Walker to
the credit of the company in its early days. He
found by the company's cash-book that Walker
received credit for the payment, and that the
money went for various purposes.
By Mr. Juta: £1,500 went to Relf, £1,600 to
Firbank, and £500 to Walker himself, the re-
mainder also being traceable in the books. Some
of these debts were due by the company before
Mr. Walker commenced his contract. Walker
himself received a cheque for £1,057 out of the
£6,000, which was soon exhausted. He based his
evidence upon the books of the company itself.
By the Court : All these items, paid out of the
£5,0(0, were provided for in the fourth paragraph
of the contract entered into by Walker.
Counsel then resumed the reading of evidence
taken on commission in London. When the read-
ing had continued for two hours,
The Chief Justice inquired of the jury whether
they could understand all that was being read.
Mr. J. R. Ross : 1 am getting in a perfect
muddle, my lord.
Another juryman said that it was possible to
understand the evidence personally given in the
Court, but the mass of documentary evidence wag
such that it was rapidly driving seme of the jury-
men crazy .
The Chief Justice : It is very difficult indeed, I
am sure.
Mr. Schreiner said that the difficulties to a jury
in a case of that sort were, he supposed, almost
unexampled, but really the evidence taken on com-
mission in England was part of the case, and had
in some form to be put before the jury. If it had
not been that there was such an enormous mass of
evidenoe, an endeavour would have been made to
print it.
The Chief Justice said that both sides were
blameable for the extreme length of the English
evidenoe, and added that the jurors must do the
best they could with it.
The reading continued until the afternoon, when
Sir Thomas Upington commenced his address to
the jury,
The Court adjourned till Wednesday.
(IN CHAMBEH8).
[Before Mr. Justice BUCHANAN.
IN THE INSOLVENT ESTATE OP DANIEL J.
CONRADIE.
Insolvency — Election of New Trustee —
Practice.
Mr. Molteno applied for an order authorising
the election of a new trustee to administer the
said estate, it now being unrepresented by reason
of the death of the first elected trustee.
Counsel having read an affidavit sworn to by
Mrs. Johanna Fagan, of Tulbagh, a creditor of the
estate, Mr. Justice Buchanan pointed out that the
usual practice in such oases was to make an order
authorising the Master to call a meeting of credi-
tors to elect a new trustee.
The Court made an order in the foregoing terms
97
PETITION OF MARY AKN OATBft.
Mr. Searle, on behalf of the petitioner, moved
for leave to sue in forma pauperis in an action
against the trnatee of her husband's insolvent
estate for recovery of oertain furniture seized by
him and claimed by petitioner, or otherwise for
damages.
Counsel informed the Court that he had already
certified and asked that a rule nisi, returnable on
this day week, should be granted calling upon the
trustee to show cause why petitioner should not be
allowed to sue in forma pauperis.
Bule nisi granted as prayed for.
THE CAPE OF GOOD HOPE BANK, IN LIQUI-
DATION, V. JULIA 8. PILKINGTON.
On the application of Mr. Watermeyer, leave
was given to iasue a writ of execution against the
respondent for the sum of £390, being the amount
due on calls in respect of thirteen shares in the
said bank registered in her name.
REOINA V. JAN ABEND8E AND J08IAH
ABENDSE.
Act 17 of 1867— Evidence sufficient to up-
hold conviction.
Mr. Giddy appeared on behalf of the Grown,
and Mr. Molteno for the prisoners.
This case came under review front a sentence
passed upon the prisoners by the Acting Resident
Magistrate of Malmesbury. It appeared from the
record, which was read by Mr. Molteno, that the
prisoners were indicted under Act 17 of 1867 for
stealing a sheep and killing it, and were found
guilty, and sentenced to six months* imprisonment
with hard labour. The evidence showed that the
spoor of two men had been traced from the place
in which the sheep had been slaughtered to within
about thirty yards of the first-named prisoner's
house, and that his wife and another woman were
seen leaving the house carrying large bundles,
which they concealed in a donga some distance
away. These bundles were subsequently dis-
covered, and found to contain sheep's flesh which
had recently been killed. Upon this evidence the
prisoners were convicted.
Mr. Molteno, on behalf of the prisoners, con-
tended that no attempt had been made to identify
the spoor as being that of the prisoners, and that
certainly as regarded the second-named prisoner
there was not a tittle of evidence against him, and
that the charge was based purely on suspicion.
Under all the circumstances of the case counsel
submitted that the evidence was not sufficient to
suppwt the conviction, that the sentence ought to
be set aside and the conviction quashed.
Mr. Giddy contended that the conviction was
right and was justified by the evidence.
Mr. Justice Buohanan remarked that the oase
depended solely upon a question of fact ; the
Magistrate who was iu the best position to judge
of the value of the evidence had believed the
witnesses for the Grown. Although the evidenoe
generally was not perhaps as oonolusive as it
might have been, still he could not say that it was
insufficient to support the conviction. The appeal
must consequently be dismissed and the sentence
confirmed.
SUPREME COURT.
WEDNESDAY, APRIL 22.
[Before the Chief Justice, Sir J. H. DE VlLLIBRS,
and a Special Jury.]
WALKER V. THE GAPE CENTRAL RAILWAYS-
SIB T. C. 8CANLBN, OFFICIAL LIQUIDATOR.
The hearing ef this oase was resumed, the
plaintiff, as before, being represented by Sir T.
Upington, Q.C., and Mr. Juta, and the defendant
by Mr. Sohreiner and Mr. T. L. Graham.
Sir T. Upington having concluded his address to
the jury,
The Chief Justice asked if the jurors had made
up their minds with regard to any of the issues
submitted for their judgment. If so a great deal
of time would be saved by their saying so at once,
as it was unnecessary to hear Mr. Schreiner upon
any issue upon which their minds were made up
against the plaintiff. For instance, had the com-
pany accepted the plaintiff's accounts at the general
and directors' meetings under a mistake of fact?
The foreman of the jury said that they preferred
hearing Mr. Sohreiner, who thereupon commenced
his address, remarking that he would endeavour to
strip it of all unnecessary features and place the
issue clearly before the jury.
Mr. Juta having replied on behalf of the plaintiff.
The Chief Justice proceeded to address the jury,
remarking, before he dealt with the issues in detail,
that the issues were forty-seven in number. He
had suggested at firet that the number should be
reduced, and if it had been the most unreasonable
suggestion in the world, he did not think it oould
have been treated with more contempt than it was.
No attempt was made on either side to follow this
suggestion, yet subsequently nine of these issues
were agreed upon in five minutes, which showed
that a substantial reduction might have been made.
The jury then proceeded to consider the issues
separately, giving their decision on each. They
found that £8,641 Is. 8d. was due to the plaintiff,
independently of the shares to whioh he was
entitled under {fee contract. This Bum was made
98
up as follow! : Cash advanced, £295 ; balance of
traffic account, £558 15b. 6d.; salary as agent,
£1,200 ; sundry debentures, £1,850 ; office ex-
penses, travelling, law, cablegrams, £250 ; use of
tools, £275; total, £8,928 15s. 6d. From this
amount £282 14s. 3d. was deducted for cash re-
turns, leaving the balance of £8,641 Is. 3d. The
jury also found for £1,626 18s 2d due on the con-
tract payable in shares.
The Chief Justice, in discharging the jury, said
that the oase had been about one of the most diffi-
cult a jury could have entered upon. He then
asked counsel if they were agreed as to the
remuneration the jury sheuld receive, but obtained
a reply to the effeot that the matter had not yet
been decided.
The Court then rose, judgment being reserved.
Postea (May 22).
Counsel having gone through the various prayers
in the pleadings, and the numerous issues sub-
mitted to the jury,
The Chief Justice delivered judgment. His
lordship said that judgment would be given for the
plaintiff upon the claim in convention, for fully-
paid-up shares of the nominal value of £1,626 18s.
2d., and also for £2,291 Is. 3d. The Court declared
that the debentures ef the company did not con-
stitute a preference upon the assets of the com-
pany, but must rank pari passu with the said sum
of £2,291 Is. 8d. Right was reserved to the plain-
tiff to prove against the company, for debentures to
the amount of £1,850, or such further debentures
as he might lawfully hold. Judgment was given
for the defendant company, upon the claim in re-
convention, for the sum of £291 7s. lOd.
The greater part of the afternoon was taken up
with the argument regarding the question of costs.
Mr. Bchreiner in the course of his argument,
which occupied over an hour, contended that inas-
much as his clients (the defendant company) had
gained a substantial victory with regard to the
major part of the plaintiff's claim, they were at
least entitled to have the costs divided. Counsel,
in his argument, referred te the following authori-
ties : "Jones v. Curling" (13 Q.B.D., 262),
"Harris v. Petheriok"(4 Q.B.D., 611), "Bank-
art v. Tennant" (89 L.J., N S., Ch. 809),
"Welby v. Brown" (1 Ex., 770), "Spenoerv.
Hamerton" (4 A.AE, 413), and "Williams v.
Great Western Railway Company " (8 M. <b W.,
856).
The Court, without allowing Sir T. Upington to
conclude his argument, gave the plaintiff his costs.
The remuneration of the jury was, by consent
of counsel, fixed at one guinea each per diem.
[Attorneys for the Plaintiff • Meiers. Van Zyl
A Buissinne.]
[Attorneys for the Defendant Company— Messrs.
jSpanlen 6 Syfret.]
SUPREME COURT,
(IK CHAMBERS.)
TUESDAY, APRIL 28.
[Before the Chief Justice (Sir J. H. DEVlL-
liees) and Mr. Justice Buchanan.]
IN THE ESTATE OF MART ANN HOPKINS.
On the motion of Mr. Graham, leave was given
to the curators of the above-named estate to raise
by loan on mortgage of the landed property the
sum of £300, te discharge certain debts contracted
by Mrs. Hopkins before she had been declared a
lunatic.
IN THE ESTATE OF THE LATE JOHANNES J.
WILKE AND WIFE.
On the application ef Mr. Molteno, authority
was given to the father and natural guardian of
the minors Boshoff to consent to the sale of the
landed property in the said estate of which they
are co-heirs with the children of the testators, on
oendition that their share of the proceeds be paid
into the Guardians 1 Fund.
IN THE ESTATE OF THE LATE JEAN PIERBE
TIRAN.
Curator ad litem — Minors.
In an action for damages about to be
brought against executors testamentary for
negligence in realizing the landed property
of the estate, the Court refused to put
Minors to the expense of a Curator ad litem
where the widow and the major children
were in a position to bring the action, and
at the same time protect the interests of
the minors.
Mr. Tredgold applied for the appointment of a
curator ad litem to the minor children of the
deceased in an action about to be instituted against
the executors testamentary for damages by reason
of their negligence in regard to the realisation of
the landed property in the estate.
It appeared from an affidavit sworn to by the
widow of the late Jean Pierre Tiran, that the
estate had been damnified to the extent of £2,600
owing, as it was alleged, to the negligence of
executors testamentary, against whom an action
was about to be instituted, and as the minors were
interested in the action it was thought desirable
that they should be represented by a curator ad
litem.
99
■ ifc
The Chief Justice remarked that the widow and
the major children could very well bring the action
and at the same time look after the interests of
the miners. He saw no reason to incur the ad-
ditional expense of appointing a curator ad litem.
No order would be made.
OATES Y THE TRUSTEE INSOLVENT ESTATE
OF OATES.
On the motion of Mr. Searle, the Court made
absolute the rule nisi admitting the applicant to
sue tn forma pauperis in an action for recovery of
certain household furniture, or otherwise for
damages.
Mr. Searle was appointed counsel and Mr. J.
Hamilton Walker attorney.
THE CAPE OF GOOD HOPE BANK (IN LIQUI-
DATION), IN BE ABNOLZ.
Insolvency — Curator bonis — Where a pro-
visional order for sequestration had been
granted and a curator bonis appointed,
the Court refused to confer upon the
curator bonis the powers of a provisional
trustee pending the provisional order being
made final.
Mr. Juta, on behalf of the liquidators of the
above bonk, applied for authority to enable the
curator bonis of the estate of Mr. Arnolz, of
Victoria West, to collect accounts, sell perishable
stock, and generally manage the business, pending
the provisional order for sequestration being made
final.
The Chief Justice remarked that it was not the
practice to appoint a provisional trustee until the
final order for sequestration had been made. The
present application was an ingenious attempt to
get the Court to confer upon the curator bonis the
powers of a provisional trustee. There were no
special circumstances in the present case for con-
ferring these powers on the curator bonis, and as
the return day of the summons was near at hand,
no prejudice could be occasioned to parties in-
terested by the business remaining olosed in the
interim.
THE OAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION).
Mr. Juta presented, fer the confirmation of the
Court, a list of compromises entered into between
the liquidators and debtors of the bank.
The required confirmation was given.
WBIOHT V. WILLIAMS.
This case (the facts of whioh appear ante
p. 33) was before the Court en the 26th February
last, but the Court deferred giving judgment
until it had heard the evidence of the defendant,
who was at sea.
Mr. Graham now informed the Court that the
defendant had presented himself for examination.
Captain William Howard Williams, in answer
to the Chief Justice, said that he was not present
at the hearing of the case, because he only received
the summons at nine p.m., and he had instructions
to sail at six a.m. en the following morning, so
that he had not even time to instruct an attorney.
Witness further stated that he never promised
Wright " lay." He spoke to all the men whom he
engaged oollectively, and told them that if they
worked well and behaved themselves they would
get " seal " money. Wright did not behave him-
self well, and after his return to Cape Town he
wanted double what he would have been entitled
to if he had conducted himself in a proper manner.
Cross-examined by Mr. Attorney Du Preez *.
He did not ask Quine to get him a certificated
mate ; he simply told him to get a mate ; a man
with a certificate was not necessary. He never
promised Wright 4d. a skin for every seal killed,
and 16s. on every tun of oil obtained. He had no
authority to make any such promise. He made no
distinction between the pay of the ordinary seamen
and that of a mate. He was present during the
hearing of the case of Wright v. De Pass, but he
was not called to give evidence. He would
willingly have given evidence had he been called.
He had been brought before the Magistrate on a
charge of assaulting the plaintiff, and was fined
6s., but it was not on that account that he refused
plaintiff his "lay."
In reply to the Court, witness stated that he
arrived in Table Bay on the 16th instant, and that
he was at present under orders to sail.
This concluded the examination. Judgment was
again deferred.
Pestea (May 16).
The Court delivered 'the following judgment t
The Chief Justioe said t It was decided in the
action brought by the present plaintiff against De
Pass & Co., that, as seaman, he was not entitled to
recover from the shipowners more than was stipu-
lated for by the ship's articles to which he was a
party. He now seeks to recover from the present
defendant, Williams, the amount which he would
have been entitled to receive if his additional
agreement with the defendant, as the agent of De
Pass 6 Co., had been inserted into the ship's
articles, as well as the costs of the unsuccessful
action against that firm. The olaim is based upon
a contract by whioh the defendant is alleged to
have warranted his agency for the firm, and) in the
100
alternative, upon a wrong done to the plaintiff by
reason of the defendant's alleged false and fraudu-
lent representation that he was authorised by the
firm to enter into the agreement on their behalf
with the plaintiff. In regard to the first ground,
the plaintiff's counsel has relied mainly upon those
English cases, of which Collen v. Wright
(8 E. and B., 647) was the first, in which
the doctrine of warranty in regard to the
undertakings of persons falsely professing to act as
agents was established. The nature of the obliga-
tion of the professed agent in such cases was said
by Willes, J., in delivering the judgment of
the majority ef the judges, " to be well expressed
by saying that a person professing to contract as
agent for another, impliedly, if not expressly,
undertakes to, or promises the person who enters
into such oontraot, upon the faith of the professed
agent being duly authorised, that the authority
which he professes to have does in point of fact
exist." The same learned judge, during the argu-
ment, referred to the Code Civil as providing that,
if the mandate is submitted to the inspection of
the other side, there shall be no warranty implied,
<( an exception/* he adds, " which seems to recog-
nise the general rule," and he proceeds to say that
" as that Code is founded on the old French law,
and ultimately on the Digest, it is probable that
the doctrine is more ancient than is supposed."
On reference, however, to the Digest, I can find no
authority for such an implied warranty, nor
oould there, under the Roman law, be
any necessity for implying a warranty,
seeing that the agent, as well as
the principal, was directly liable to third
persons contracting with such agent. The agent
was not regarded as a mere representative for the
purpose of entering into contracts on behalf of his
principal. Persons contracting with him had
their election, so long at all events as the agenoy
oontinued, whether they would prooeed against
him or against his principal. In the Dutch law
the change from the Roman to the more modern
doctrine of agenoy was a gradual one, and was not
effected without much differenoe of opinion. In
the " Dutch Consultations " (1,192) the opinion
of an eminent advocate is given, to the effect
that an agent who has chartered a ship on behalf
of his principal is liable for the freight ; and
"Matthaus" (De Auct, 2, 6, 86) lays down
generally that a person who contracts in an official
capacity is personally liable on the oontraot so long
as he retains that capacity. " Voet " (14, 8, 6)
offen no positive opinion on the subjeot, but
there can be no doubt, from the authorities col-
lected by him, that the better opinion was that the
principal alone, and not the agent, is
liable, except j(n jftlffisW *!^ Tsl' : where
the oontraot was made with the agent in the
belief and upon the faith of his being the principal,
where the agent professing to act for his principal i
had no authority so to act, and where the agent I
had expressly bound himself on behalf of the "
principal. In these excepted cases the agent
would be liable for damages arising from the
breach of contract, but oould not be compelled
specifically to perform a contract, such as a promise
of marriage, which the principal alone is alleged to
have undertaken to perform in person. In the
present case it is clear, from the evidence of
Captain Spence, that the defendant had no
authority from the firm to enter into the addi-
tional agreement sued upon. If, therefore, the
agreement was one upon which the firm would
have been liable in case the requisite authority
had been given to the defendant, there can be no
doubt that the defendant, if he did give the addi-
tional undertaking, would be liable in damages.
This liability would exist, not by virtue of such a
warranty or promise as the English law deems it
necessary to imply, but by virtue of the rule of
our law, that the agent is liable fer damages on
the contract itself which he has entered into on
behalf of a principal from whom he had no
authority to enter into such contract.
But it has already been decided that
the agreement sued upon could not be
enforced as against the defendant's principals,
namely, De Pass & Co., even if they had author-
ised him to make it. The ship's articles
are silent as to suoh an agreement, and we are
bound by the decision of the Court that the
plaintiff had no claim against the firm beyond the
terms of the articles. If he had no claim against
the firm, he clearly has no claim against the agent
of the firm in respect of the agreement itself. Has
he any claim for damages against the defendant in
respect of his alleged false representation ? If the
misrepresentation was fraudulently made, the
defendant would dearly be liable, and if it was
made reklessly , regardless of its truth or false-
hood, it was made fraudulently. The representa-
tion alleged to have been made was, in substanoe,
that whatever the form of the written contract,
the plaintiff would reoeive certain extra remunera-
tion for his land services on the sealing
expedition, and that the defendant had
authority from the firm to enter into
an engagement to that effect. Upon this
question sf fact the Court entertained considerable
doubt after hearing the evidenoe given on behalf of
the plaintiff. Judgment was therefore deferred
until the Court oould take the evidenoe of the de-
fendant himself. We are satisfied after hearing
his evidenoe that his only reason for not defending
the action was that he did not reoeive the summons
until he was on the point of starting with his
vessel on a coasting voyage, and that he did not
enter inte the additional agreement relied upon or
make the alleged false representation to the plain-
loi
tiff. It is greatly to be regretted that the plaintiff
did not in the first instance aooept the offer made
by the firm of De Pass & Co., for as against the
present defendant 1 am of opinion that he has no
elaim whatever. The judgment of the Court must
thesefore be fur the defendant.
[Attorney for the Plaintiff— H. P. du Prees.]
SUPREME COURT.
(IN CHAMBBB8).
TUESDAY, MAY 12.
[Before the Chief Justice (Sir J. H. DB Vlls-
LIEH8) and Mr. Justice BUCHANAN.
THB UNION BANK (IN LIQUIDATION).
Mr. Schreiner presented, for the sanction of the
Court, certain compromises proposed to be effected
by the official liquidators of the above bank with
certain debtors thereof.
The Court, after hearing counsel, granted the
sanction.
IN THB B8TATB OF THB LATB CHARLES POTB.
On the motion of Mr. Graham, authority was
given to the Master of the Supreme Court to call a
special meeting of creditors of the insolvent estate
of the late Henry Heath, for the proof of debts
and election of a trustee.
PETITION OF MAX 8GHAK8CO.
On the application of Mr. Searle, leave was
granted to the applicant to sue in forma pauperis
in an action to be instituted against one Smile H.
van Noorden, for a declaration of rights, and for
an account of the partnership dealings between the
parties.
PETITION OF DIRK ABBAHAM8E
Mr. McLaohlan, on behalf of the petitioner,
moved for leave to sue in forma pauperis in an
action to be instituted against his wife for divorce,
by reason of her malicious desertion and adultery.
Referred to counsel for his certificate.
WILSON V. WILSON AND MINNA A R.
Evidence — Commission de bene esse.
Mr. Graham moved for the issue of a commis-
sion to take evidence in the suit de bene esse at
Fraserburg.
Mr. Jnta, who appeared for the respondents,
consented, en condition that the commission were
made a joint one.
The Court ordered a joiat commission to issue, as
prayed for, and appointed the Resident Magis-
trate of Fraserburg commissioner.
STBWABT V. KINGON.
Practice — Pleading — Bar — Purging default.
Mr. Graham appeared for the applicant (defen-
dant), and
Mr. Shiel fer the respondent (plaintiff).
It appeared from affidavit that this action was
oommenoed by a writ of arreBt being issued on the
11th February last against the defendant for the
sum of £68. The arrest was effected on the same
day that the writ was issued, as the defendant was
on the point of leaving for England, but on his
finding security the defendant was allowed to leave
the Colony.
The plaintiff's declaration was filed on the
18th February. The defendant in his plea
admitted the correctness of certain items in the
account, denied liability in respect of others, and
counter-claimed for the sum of £210, less £48, in
respect of certain transactions set out in the claim
in reconvention. An exception replication and
plea was filed on the 11th March last, and after
due notice the defendant was barred from answer-
ing plaintiff's exception.
Mr. Graham now applied for leave to purge
defendant s default, to file his rejoinder, and to
have the action postponed until the arrival of the
defendant, who is shortly expected.
Mr. Shiel remarked that his client had no desire
to take an undue advantage of the defendant, but
he was anxious at the same time that the case
should come on for trial at as early a date as
possible.
The Court, after hearing counsel, granted the
defendant leave to purge his default, and postponed
the trial of the case till August 1, unless the de-
fendant should return to the Colony during the
ensuing term, in whioh event the case was to be
set down for hearing at once, the defendant
(applicant) to pay the costs of the present
application.
102
SUPREME COURT-
friday, MAY 15.
[Before the Chief Justice (Sir J. H. DE
VlLLIEBS), Mr. JuBtice SMITH, and Mr.
Justice Buchanan.]
BEGINA V. AAB0N PLESBIS. ,
Act 18 of 1873— Sections 2 and 4— Con-
viction under wrong section.
The Chief Justice remarked that this case had
come before him und»r review from the Resident
Magistrate of Worcester. The prisoner was in-
dicted for contravening section 2, sub- sections 3
and 7, and section 4, sub-section 6, of Act 18 of
1878. The prisoner was convicted of contravening
section 4, sub-section 6, and was sentenced te two
months' imprisonment with hard labour, spare
diet, and solitary confinement for two days, and
was further required to sign a bond to keep the
peace for three menths. The Chief Justice said
that the prisoner had been convicted under the
wrong Bection, and the sentence would be altered
to that of a fine of £1, or in default, one month's
imprisonment with hard labour.
BEGINA V. HABEBKOBN.
Mr. Justice Buchunan made the following re-
marks with regard to this case, which was tried at
the late criminal sessions. The learned Judge
said that before proceeding with the business of
the day he wished to refer to a circumstance con-
nected with the late criminal sessions. Among
the cases on the calendar was that of Regina v.
Haberkorn, a sailor in the German Navy, who was
charged with murder. He expressed his surprise
at finding that the prisoner was unrepresented by
counsel, as under the circumstances of the case he
should have expected that a defence would have
been prepared for him. This not having been
done, he requested Mr. Graham to defend him pro
Deo, He had since been informed that some time
before the trial the German Consul-General had
been under the impression that the accused would
be tried, not for murder, but for culpable homicide,
and that all steps necessary would be taken for his
def enoe. It also seems that the Consul-General
understood that every person charged with a
serious crime was by law necessarily provided
with counsel to defend him, as is the rule in
Germany. He thought it due to Herr Yon
Treskow to state this, so that any misconception
arising out ef ignorance of the facts might be
removed so far as he was concerned.
PROVISIONAL ROLL.
HABBIS AND CO. V. GBODNEB.
Arrest, writ of— Confirmation.
Mr. Juta applied for provisional sentence for
£81 5s M and for confirmation of the writ of arrest.
The defendant, who appeared in person, said
that he did not know why he had been arrested.
He bad no intention of sailing for Australia, as
had been alleged in one of the affidavits. He was
unable to pay the entire debt, but he had made
the plaintiffs an offer of £10 which he was under
the impression they had accepted.
Provisional sentence granted as prayed for.
BIGAL V. GBODNEB.
Mr. Sohreiner applied for confirmation of the
writ of arrest against the defendant.
The defendant (who was the same as in the
previous case) appeared in person, and denied that
he owed Rigal anything. He also pointed out to
the Court that the writ was issued against
Abraham Grodner, whereas his (defendant's) name
was Aaron Grodner, although he had a brother
whose name was Abraham.
In answer to Mr. Justice Buchanan, defendant
said he did not know where his brother was at
present.
Mr. Sohreiner having obtained leave to amend
the writ by substituting the name of Aaron for
Abraham, the Court confirmed the writ of arrest,
and the defendant left the Court, accompanied by
the Deputy Sheriff.
LIEBENBEBG V. WE8THUY8EN.
On the motion of Mr. Graham, provisional sen-
tence was granted on an acknowledgment of debt
for £448, payable at sight, and on a ipromissory
note for £61.
BTEGMANN V. COHEN.
Promissory Note — Provisional sentence-
Payment into Court.
Where on an application for provisional
sentence on a promissory note, the defen-
dant alleged that he had a claim for damages
against the plaintiff, and prayed that the
amount of the judgment should be paid
into Court to abide the result of the action,
the Court refused to accede to the defen-
dant's request and granted provisional
sentence.
Mr. Searle appeared for the plaintiff and Mr.
Jmtaforthe defendant. This was an application
103
for provisional sentence on a promissory note for
£381 5a.
Mr. Jnta, in opposing provisional sentence, re-
marked that hia olient had a claim for damages
against the plaintiff for unlawfully attempting to
sequestrate his estate, and submitted that if sen-
tenoe were granted the money ought to be paid
into court.
Mr. 8earle, in reply, pointed out that it was in
variably the practice of the Court to grant pro-
visional sentence on a liquid document, and that
there were no grounds for departing from that rule
in the present case.
The Chief Justice remarked that the defendant
was clearly liable, and he could see no reason for
making an order that the amount of the judgment
should be paid into court, to abide the result ef
the action which the defendant said he was about
to institute. Provisional sentence would be
granted with costs.
DE VILLIBBS V. BAARTMAN.
On the application of Mr. Molteno, provisional
sentenoe waa granted on a promissory note for
£640.
BATE V NEL.
Practice— Decree of civil imprisonment —
Nulla bona — Insufficiency of Sheriff's re-
turn.
Mr. Molteno applied for a writ of civil imprison-
ment against the defendant on an unsatisfied judg-
ment for £179 16b. 3d., and a taxed bill of costs for
£186 10a. 7d.
Mr. Searle opposed the application, and offered
part payment of the debt, which, however, Mr.
Molteno declined to accept.
The Chief Justice, in giving judgment, remarked
that as counsel for the plaintiff had declined the
terms offered by defendant, the oase must be
decided on its merits. There had been no return
of nulla bona : the endorsement on the writ was to
the effect that property to the value of £25 had
been attached and subsequently released by in-
structions from plaintiffs attorney. Civil impri-
sonment was a last resource, and ought not to be
had recourse to until every step had been taken to
realise the personal effects. In his (the Chief
Justice's) opinion, the return made by the Sheriff
was not sufficient to justify the Court in granting
a decree of civil imprisonment. The application
would be refused with costs.
HALL AND CO. V. OCTOBER.
Mr, Bhiel applied for provisional sentence en a
promissory note for £800 due on the 6th April
lart.— Provisional sentence granted.
THE CAPE OF. GOOD HOPE BANK, IN LIQUIDA-
TION V. ABNOLTZ, JUN.
On the motion of Mr. Schreiner, the final ad-
judication of the defendant's estate was ordered.
THE CAPE OF GOOD HOPE BANK, IN LIQUIDA-
TION V. ABNOLTZ AND CO.
On the application of Mr. Schreiner, the order
for the final adjudication of the defendant's estate
was granted.
BELLAR BROS. V. CRANNA.
On the motion of Mr. Watermeyer, provisional
sentence was granted on a promissory note for
£59 lis.
CRANKO'S EXECUTORS V. T. J. VAN SCHOOR
On the application of Mr. Molteno provisional
sentence was granted on a mortgage bend for
£3,000, less £49 paid on account. — Property de-
clared executable.
MYBUBGH'S ASSIGNEES V. KLERCK.
On the motion of Mr. Juta, the order for final
adjudication of the defendant's estate was granted.
HIRST V. MULLER, SMITH AND CO.
Ordered to stand ever till Thursday next.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : Anthony
Miobael Holtzhausen, Johannes Petrus du
Plessis, John George White, Irvine Pascoe
Hughes, Jan Barend Pieter Frylinok, Emanuel
William Gough, Jacobus Adriaan Louw Momsen,
Lawrenoe & Sons, Edward Augustus Rudd, Petrus
Jacobus Maritz, Johannes Hermanns Cloete,
and Matthys Michiel Andries de Jager.
GENERAL MOTIONS
PETITION OF FREDERICK JACOBUS VAN ZTL.
On the motion of Mr. Jonbert, the rule nisi was
made absolute conferring upon the Registrar of
Deeds authority to cancel a certain mortgage bond
for £150, passed in 1857 by the petitioner's father
in favour of one Balthazar Klopper, now deoeased.
TOPP V. TOPP.
On the application of Mr. Schreiner, leave was
granted to issue a commission to take the evidence
de bene esie of petitioner and her witnesses at
Edinburgh.
Mr. William Gardner, sheriff's clerk ef Mid-
lothian, was appointed commissioner.
104
THE CAPE OF GOOD HOPE BAKE, IN
LIQUIDATION V. POBTEB.
On the motion of Mr. Schreiner, authority was
given to the official liquidators of the above bank
to issue a writ of execution against the respondent
for £160 in respect of the call on fire shares in
the said bank, of which he is the registered owner.
THE CAPE OF GOOD HOPE BANK (IN LIQUIDA-
TION) V. THE EXECUTORS OF VAN LIEB.
THE UNION BANK (IN LIQUIDATION) V. WAT-
SON'S HEIBS AND EXECUTORS.
As the issues in these two cases which were
before the Court on the 17th and 12th March
respectively (C.T.L.R. ante 78 and 72) were the
same, the Court decided to hear them together.
Mr. Schreiner appeared for the applicants in
both cases, Mr. Juta for the executors of Van
Lier, Mr. Searle for Watson's heirs, and Sir T.
Upington, Q.C, for Watson's executors.
Mr. Schreiner said that in the case of Van Lier
he moved on the part of the Cape of Good U ope Bank
that a rule already granted should be made abso-
lute, which called upon the defendants to show
cause why they should not be called upon to pay,
de bonis propriis, certain calls of £30 per share.
Van Lier left the shares in question for the benefit
of the Cape Town Ladies 1 Benevolent Seoiety, and
the dividends were duly paid over.
Mr. Juta read an affidavit of Mr. Harry Gibson,
to the effect that at the time when the estate was
liquidated the said bank was in a flourishing con-
dition, the assets being more than sufficient to
meet the liabilities. There was then no human
probability that the said bank would at any time
be placed under the Winding-up Act. The terms
of the ordinance were duly complied with when the
estate was liquidated, but no claims were then
lodged by the said bank.
Mr. Schreiner then formally moved, on behalf of
the Union Bank, for an order against the heirs
and executors of the late Thomas Watson.
Mr. Justice Smith : There was nothing in the
will of Van Lier authorising the trustees to hold
the shares ?
Mr. Schreiner : Yes ; they were not to sell or
dispose of them.
The Chief Justice : Strictly speaking, the execu-
tors are not now asked to pay de bonis propriis.
They are only asked to pay the money to the
liquidators. We oould not well hold them liable
de bonis propriis as if they had neglected their duty
by not selling the shares.
Mr. Schreiner said that the executors could not
be heard to say that their account of the money
was that they had paid it to the heirs.
The Chief Justice : It is not now, strictly, an
application for payment de bonis propriitf
Mr. Sohreiner : Yes, my lord, because they have
made a return of nulla bona. I shall be able to
show that the oourse we are taking is the one
usually taken in these oases against executors in
England.
Mr. Justice Smith: You say the executors
were bound to set aside oertain moneys to meet
future calls which might arise ?
Mr. Sohreiner : Yes, and that they took the risk
if they did not do so. The proper course is for
them now to pay us the money.
Mr. Justice Buchanan : The English oases would
hardly apply to some of our Colonial statutes.
The English practice is so vezy different.
Mr. Sohreiner said that in Watson's case the
history of the matter was that the official liqui-
dators first applied to the Court for an order
against the heirs to show cause why they should
not be placed on the list of contributories, making
them jointly and severally liable for the payment
of £7,500, less £425 17s. To the applicants it did
not matter which of the parties paid.
The Chief Justice : Anything against the heirs
would be by action. They oould not be put en the
list of contributories.
Mr. Sohreiner : That would be so in any new
case, but it will be remembered that this case was
commenced before the Court gave an indication of
its present view.
The Chief Justice : It seems clear in' the present
case that they cannot be placed on the list as heirs
but they might be held liable by an action.
Mr. Sohreiner said that it was desired by no
one to merely shift the method of arriving at the
legal position.
The Chief Justice : If you get a judgment
placing the executors on the list of contributories
that is all you want. You can leave it to the
executors to fight it out with the heirs.
Mr. Schreiner : Oh yes ; they are all good people,
and able to pay. The evidence shews that about
£5,000 was paid to each heir, and now there is a
claim for £7,600, of which £425 17s. has been
satisfied.
Mr. Justice Buchanan : I suppose there may be
a subsequent call ?
Mr. Schreiner : It is possible, my lord.
Sir T. Upington said that, immediately after
their appointment, the executors caused a notioe
to be inserted in the Government Gazette and other
newspapers, in 1884, calling upon all persons
having claims to send them in to the executors,
but no claim was then made by the Union Bank,
nor had the executors knowledge of the existence
of any debt until July, 1890. They had filed no
fewer than ten liquidation and distribution aooounts
in the estate of the late Thomas Watson, and
prior to the final distribution of the funds these
accounts were duly advertised and not objected to.
The exeouiers had from time to time endeavoured
106
to sell the shares, by public auction on the stoep
of the Commercial Exchange and through brokers,
bat failed to do bo. The executors also called
upon the heirs to take over the shares, but they
declined to do bo. After the death of Thomas
Watson the chairman of the Union Bank pur-
chased a large number of shares, and the executors
had no reason to doubt the soundness of the bank.
Mr. Schreiner read the affidavit of Mr. George
William Steytler and Mr. Harry Gibson, to the
effect that between 1884 and 1890 there were large
transactions in Union Bank shares. Business was
particularly brisk during 1888 and 1889, when
some seventy transactions took place.
Mr. Searle read the affidavit of Mr. Thomas
Tennant Watson, a Government land surveyor and
one of the heirs, to the effect that shortly after the
death of Mr. Thomas Watson a tender of Is. per
share for certain Union Bank shares held in the
estate was made, but refused by the directors of
the institution. Counsel said that the legal
position taken up by the heirs was that they could
not possibly be placed on the list.
Mr. Schreiner said that of course if the Court
held that the heirs could on no account be placed
en the list of contributor! es, then the remedy
would be by way of action.
Sir T. Upington said that in the case of the
executors of Watson's estate he contended that
there was not the slightest liability upon the
executors to pay this money de bonis propriis, in
the events which had happened. A very wide
distinction had to be drawn between the English
company law and our own, both as regarded the
formation of companies and their winding up.
With regard to the latter point, he thought it
would be as well if he at once referred to the
Winding-up Act in England and that in this
colony, for the purpose of drawing a comparison
between the position of executors in the two
countries. The Companies 1 Act of 1862
provided that if any contributory died,
either before or after he had been
placed on the list, his personal repre-
sentative Bhould, upon certain conditions
being complied with, be held liable. There was no
such provision in the Colonial law, enabling the
Courts to place upon the list of oontributories
persons in the position of executors. Counsel at
great length then read extracts from the English
statutes relating to company law and the law
regarding executors. He also read a judgment
of the Lord Chancellor, to the effect that when an
executor had passed his accounts through the
Master bis liability ceased, and any remedy that
existed was against the legatees.
The Chief Justice : Knowing this was an un-
limited liability company, ought not the executors
to have laid aside certain moneys for the purpose
of meeting calls ?
Sir T. Upington said no, not unless the Court
held that no executors should distribute the assets
in any estate whilst one share in an unlimited
company remained unsold.
The Chief Justioe said that here was an un-
limited liability hanging over the head of an
executor. Ought he not to settle and realise the
shares ? If he did not, did he not leave the
matter undone at his own risk and cost ?
Mr. Justice Smith : Who ought to be liable ?
The man who has done the wrong ; the executor ?
Sir T. Upington : I do not say the legatee
is liable, but if anyone is, it is he.
The Chief Justice said that the creditors of the
bank looked to the shareholders, and when they
asked who the shareholders were, they were told
that one shareholder was the estate of a wealthy
man, named Thomas Watson.
Sir T. Upington contended that the creditors
were guilty of negligence in not making inquiries.
Mr. Justice Buohanan : Supposing that when
Watson was alive he made a gift of £10,0i0 to
a man, and that when Watson died his estate
could not pay the calls on these shares, surely they
could not go back and take that £10,000 away ?
Sir T. Upington : Certainly not. It would be a
monstrous state of things.
Mr. Justice Smith : The obligation in this case
was to sell the shares.
The Chief Justice : And some st ares were sold,
that is clear.
Mr. Justice Smith : I think I am right in saying
hundreds of shares were sold.
Sir T. Upington said that there was no evidence
as to the consideration which passed for those
shares. It would perhaps be found that in nine-
tenths of the oases the shares were absolutely made
gifts of.
Mr. Justioe Smith : It came before the Court in
a recent case that Mr. Farmer bought a large num-
ber of these shares after 1884.
Sir T. Upington : Yes ; but they were from Mr*
W. G. Anderson, his own partner.
The Chief Justice i No ; most of them came
from Mr. Myburgh.
Sir T. Upington said that at any rate nothing
was known as to the consideration which passed
between the partners. Unless it could be shown
that these executors had acted negligently and im-
properly they could not be held personally liable
for the calls.
The Chief Justice said that the onus lay with
the defendants. They were sought to be placed en
the list, and it was for them to show they were not
liable.
Sir T. Upington said that the strong position he
took up was that only the estate of Thomas Wat-
son oould be operated upon by the liquidators in
this case.
Mr. Justice Smith : Whom can you sue ?
106
Sir T. Upington : The legatees.
The Chief Justice : But has not the plaintiff
two strings to his bow ?
Sir T. Upington : I say no ; once the accounts
are passed the only remedy is against the legatees.
Whether they can be held liable I don't say.
The Chief Justice : The question is, who is to
fight it out with the legatees and heirs ?
Sir T. Upington then proceeded to refer to the
English authorities bearing on the case, and con-
tended that under no circumstances could the
executors be held liable.
The Chief Justice : When Mr. Thomas Watson
died his estate remained in partnership with the
bank. His executors, knowing that there is
in existence such a risky partnership, pay out the
heirs. Were they justified ? That is the point.
Mr. Juta addressed the Court on behalf of the
respondents in the case of Van Lier.
Mr. Searle having concluded his argument as to
the non-liability of Watson's heirs,
Mr. Schreiner replied at length for the appli-
cants. He said that it was perfectly true the
executors had paid £5,000 to each of tne Watson's
heirs, but they bad done so purely at their own
risk, if, as was the case, they knew what the
ordinance was. Clearly it was the duty of the
executors either to sell the shares or, finding that
an impossibility, to compel the ten heirs to take
five shares apiece. Until they had done that the
estate was hung up. Mr. Schreiner had not con-
cluded his argument when
The Court adjourned.
SUPREME COURT.
SATURDAY, MAY 16.
CAPE OF GOOD HOPE BANK (IK LIQUIDATORS)
V. VAN LIER'S EXECUTORS.
UNION BANK V. WATSON'S HEIRS AND
EXECUTORS.
Mr. Schreiner represented the applicants ; Mr.
Juta, Van Lier's executors ; Sir T. Upington, Q.C.,
the executoro of the late Thomas Watson ; and Mr.
Searle the heirs in the estate.
Mr. Schreiner continued his argument in reply.
He contended that the executors were liable be-
cause they made a distribution of as3ets without
haying legal power to do so. He referred their
lordships, in support of this contention, to the
recent oase of Hofmeyr (Cape Times Law Reports,
page 66).
Mr. Justice Smith : In that case the shares were
left to Mrs. Hofmeyr.
Mr. Schreiner submitted that if the heirs would
not take the estate as a whole the executors
ought to have retained possession of the
entire estate until they had found someone
willing to take the shares up. The heirs were
asked to take over the shares. They said they
would have the Good Hope shares but not those of
the Union Bank. Then the executors
eught to have refused to pay over the money
without an indemnity for future calls.
It was idle to say they did not know there would
be a call. There was clear proof of the claim, in
the shares themselves. The executors received a
certain estate, which they were bound to admin-
ister according to law. They were managers to
some extent, but also personal representatives of
the deceased, as was pointed out in the case of
Fisher, in which his lordship the Chief Justice
laid down the position of the model executor. The
oase was not one in which a creditor was seeking
judgment. The bank had already got the judg-
ment when the Court authorised the calls. His
position was, broadly, that the estate of Watson
was already on the list of contributories, and that
as the executors represented the estate, judgment
had really issued against them. The return of
nuUa bona was no answer to the claim.
Mr. Justice Buchanan said there was a distinct
difference between the position of the executors
and that ef the heirs.
Mr. Schreiner : Decidedly ; the executors are on
the list.
The Chief Justice said that the Court would be
prepared to decide whether the executors were
liable de bonis propriis. It was quite possible there
might be an action against both the executors and
the heirs, but what the Court said in the oase of
Hofmeyr was, that if the heirs were proceeded
against they could not be put on the list, but must
be proceeded against by some other form of action.
Mr. Schreiner submitted that the bank had
double remedies. He did not think there was
much sympathy with the heirs in this oase. They
had: received £6,000 a-piece, and were only asked to
pay £760 each towards the settlement of their
father's debt.
Mr. Justice Smith : Surely they may ask why
they are to pay £750 if the executors have not
done their duty ?
Mr. Schreiner : Oh, yes. When we get our
judgment we shall be able to wish both parties
God-speed on their respective roads.
Judgment was reserved.
Postea (May 27th).
The Chief Justice remarked that the Court
before delivering judgment in this oase, would like
to see an affidavit from the liquidators setting
forth to whom dividends had been paid, and if to
107
the executors, had they credited the heirs with the
■mount of the dividends ?
Mr. Schreiner informed the Court that Wat-
ton's estate had been duly credited with the
dividends.
The Chief Justice : We should like to see these
facto on affidavit.
Pertea (May 29th).
The Chief Justice observed that the Court had
given much anxious consideration to this case, and
they were of opinion that for the present at least
no order should be made on the rule nuu In the
present case the executors could suffer no hardship,
as in the interim they were in a position to sue the
heirs. Cases, however, might occur in which great
hardship might be done to executors who had acted
in a bona-fide manner if no opportunity were given
them of suing the heirs for the amount that they
had paid over. In the case under consideration
time ought to be given the executors to sue the
heirs, and consequently bo order would be made
on the rule until the last day of next term, the
31st August.
Mr. Schreiner asked whether the remarks which
had fallen from the Bench applied also to Van
Lier'scase?
The Chief Justice said that in the latter case a
shorter time might be allowed, as he understood
the parties were resident in the Colony. There
was also the case ef the Paarl Bank v. Boux.
Sir T. Upington, Q.C., informed the Court that
in the last-mentioned case an action was about te
he instituted by the liquidators of the bank against
the heirs of Boux.
The Chief Justice remarked that under these
circumstances no order would be made on any of
the rules until the 81st August next, but in the
interim the Court would expect the executors to do
their duty and find funds to meet the claims.
[Attorneys for the Union Bank. Messrs. Fair-
bridge 6 Arderr.e, for the Cape ef Good Hope
Bank. Messrs. Reid & Nephew, for Van Lier's
Executors Messrs. Wessels 6 Standen, for Watson's
heirs. Messrs. Van Zyl 6 Buissiane, for Watson's
Executors. Messrs. Reid 6 Nephew.]
WILSON AND HALL V. WESSELS.
Diamond Mine —Trespass — Act 19 of 1883,
Section 76— Statutory rights of owner —
Interdict — A ppeal.
Sir T. Upington, Q.C., with Mr. Searle, repre-
sented the appellants, and Mr. Schreiner and Mr.
Molteno the respondents.
Sir T. Upington said this was an appeal from a
decision of the High Court of Griqualand in an
application made by one Johannes Jacobus Wessels,
of Wellington, against the present appellants,
Wilson A Hall. A notice of motion was issued,
calling upon them to show cause why they should
not be interdicted, and restrained from working
themselves, or by their agents, in the Premier
Mine at Kimberley. The application was sup-
ported by the affidavit of a Mr. Marais, who said
he was the general agent of Mr. Wessels, of
Wellington, the owner and proprietor of the
farm upon whioh the mine was discovered, of
which he said Wessels held undisputed title.
The affidavit went on to say that a diamond-mine
had been discovered en the said farm, and that a
number of persons proceeded to the mine and
marked out claims, that they continued trespassing
on the said farm, with a view to winning diamonds,
the property of the applicant Wessels, without hie
leave or licence, or the consent of anyone having
authority under him. Applioant saw among the
diggers a number of men whom he knew, and
called upon them to leave, but he alleged that
the defendant Wilson commanded them to remain,
and informed applicant that he (Wilson) had
pegged out a claim himself. The affidavit of H.
A. Ward was also read by counsel. It was to the
effect that twenty people were working at
different parts of the mine without consent,
whioh was an act of wilful trespass. The
defendant Wilson had informed deponent that he
had pegged out a olaim, and intended working it
whether the owner gave consent or not. Counsel
was proceeding to refer to the evidence of further
parties, when
The Chief Justioe remarked that their lord-
ships had read the affidavits in the case.
Sir T. Upington said then that would shorten
matters. The two questions raised in the case ,
Counsel continued, were, first, as to the rights of
the present appellants te go upon the farm at
all, and secondly, even if they had no right,
whether the proper person to proceed against
them was Mr. Weasels. In regard to the first of
these questions he might at once state that in view
of section 76 of Act No. 19 of 1888, which governed
those proceedings, he could not ask the Court to
say that the persons who went upon this property
had an undoubted legal right to go there, there
having been no proclamation of the mine by
the Government as a publio diggings or mine, and
consequently, in his opinion, he might have some
difficulty in asking the Court to believe that his
clients did net misconceive their legal position in
regard to going upon this land. He would like to
say that the fact of his making that candid
admission did not in the slightest degree trench
upon suoh right as the Government might have to
declare this mine to be a publio mine under sec-
tion 76, for he had seen it stated that the effect
108
of the judgment of that Court would be to hold
that the Government, under the drcumstanoes,
would have no power whatever to deolare the mine
a public diggings. That was, of coarse, perfectly
erroneous, and having said that, he wiped away
the whole of the first part of these questions, and
oame to the simple question whether, in the events
which had taken place, Weasels or the person who
had obtained a concession from Him to the
minerals and precious stones was the proper party
to sustain that proceeding. That was the sole
question he should have to trouble the Court with.
Mr. Justioe Buchanan : Who is the registered
owner?
Sir T. Upington : Weasels, I believe, my lord. I
think it must be so, and I shall have to admit it.
I shall take it, for the purpose of this pro-
ceeding, that Weasels is the registered owner.
Proceeding, counsel said that the learned judge in
the Court below, in very dearly discussing these
two points, held that the first point advanoed by
the respondents (now the appellants) was unten-
able, and then proceeded to say that he was of
opinion that the applicant Weasels had a dear
right to an interdict against the continuance of the
trespass. Proceeding to the question of whether
Wessels was the proper party to take action, the
learned judge discussed such of the Roman- Dutch
authorities as he was able to refer to, and also
English authorities, and came to the conclusion
that Mr. Wessels had the right to apply for an
interdict, and that it was not necessary to have
before the Court the man Ward, the concession-
aire under Wessels. The learned judge further
said that there had been a subverting of the soil,
and apparently a removal of part of the land. If
the publio digging was allowed to con-
tinue, and indiscriminate working went on,
Mr. Wessels would recover hiB property with the
land subverted, and deteriorated seriously in value.
Now, if that view could be supported it would be
difficult indeed for him (Sir T. Upington) to con-
tend successfully what he was proposing to con-
tend, for if preoious stones and minerals belonging
to Mr. Wessels were removed from the soil, they
being his property, it was a most unfair and im-
proper thing for any man to have done, and the
Court would undoubtedly interfere. But if they
looked at the facts it would seem that WeBsels had
no possession whatever. An agreement was
entered into between Wessels and Ward, under
which Ward was given the refusal of purchase of
the two f armB, on one of which this diamond-mine
was discovered, and here came the question in
regard to Ward's rights. He must ask the Court
to bear in mind that the application was for an
interdict to restrain people from working in the
Premier Mine, and the allegation in Marais'
affidavit was that Wessels was the actual pro-
prietor of these diamonds, and that was the
ground really upon which the application oame
before the Court below. The agreement,
oounsel continued, set forth that the farms should
not be transferred to the purchaser by Weasels
until certain instalments were paid, and that
during the twelve months that Ward had the re-
fusal of the farms he should have the right to
prospect for diamonds or precious stones, and to
open and devdop any mine or mines he might
discover on any portion of the two farms. In the
event of any such mine being opened, Ward agreed
to allot to Wessels, senior, and his heirs, execu-
tors, and assigns, twenty olaims in any such mine.
Now he (Sir T. Upington) said that that was an
absolute disposal of the property in all these
diamonds. As soon as the mine was developed
Wessels was to get twenty olaims marked off, and
that was all.
The Chief Justioe : Then do you contend that if
a person gives the right to A to dig for diamonds that
immediately afterwards all the world may rush in
and do the same ?
Sir T. Upington Said that his contention was that
no one had any claim for an interdict restraining
persons from taking diamonds away except the
person who owned the diamonds and the soil.
The Chief Justioe said that surely it made a
difference to the owner whether A alone oame on
to his ground or whether the whole world came.
The difference to the owner must be very great.
Sir T. Upington said that the question would be
who was in possession of this property supposed to
be damaged. There was no serious allegation, he
believed, that the farm was really damaged.
The Chief Justioe: The mine is part of the
farm.
Sir T. Upington : No doubt of it, but the person
who has a claim is Ward, and not Wessels.
Mr. Justioe Buchanan: But what right have
these persons on this ground ?
Sir T. Upington said he was not asking that
question now. He started by saying he was not
prepared to ask the Court to say his clients had
any legal right there, but at the same time he
contended that Wessels had no right to the farm,
except in so far as his twenty claims were con-
cerned, until Ward's period was at an end. He
had no possession whatever of the Premier Mine,
and no right to step in. Ward was the man.
The Chief Justice said that might be true, and
yet Wessels, as the owner, might be entitled to
prevent anyone else than the concessionaire ooming
on the land and digging for diamonds, even if the
right of winning diamonds for a period had been
given to Ward. But as a fact Ward could only
take suoh diamonds as he might win whilst he held
the farm.
Sir T. Upington said that everything was given,
and Ward could devdop the mine. He coujd
bring 60 ? 000 people into \\.
109
The Chief Justice : Tea, if he oould find 50,000
to go, bat he is only entitled to the diamonds he
may find during his period of occupation.
Sir T. Upington said that they then came te the
point why Ward was not brought forward and
made a party to the present suit. He had
affidavits which showed the trne reason. Ward
had parted with the rights he had obtained under
the concession from Weasels to seme extent,
because one of the present appellants deposed that
permission to dig was given him by a sub-con-
cessionaire.
Mr. Justice Smith : Do Wilson and Hall say
Ward has given them the right to dig ?
Sir T. Upington said that one of the appellants
itated that Welch, a sub-concessionaire from
Ward, gave him the right of digging. There were
actions of a mott important nature pending with
regard to Ward's right to these diamonds. Mr*
Marais' statement that Wessels was the sole
owner of the mine, in face of the agreement with
Ward, was astounding. If Ward had given away
the bulk of his concession, was it not a great hard-
ship that persons who had obtained the right to
dig from sub-concessionaires should be stopped,
pending the settlement of these important actions ?
Mr. Marais had made the remarkable statement
that Wessels was the sole proprietor of this dia-
mondif erons soil, but the agreement to which he
had referred scarcely bore out that statement.
Counsel proceeded to read an agreement made
between Ward and one Caprisius, by which the
latter was given prospecting rights for five months
at the mine, and permission to lay down six
washing-mach hies.
Mr. Justice Smith : It may be that Ward has
exceeded his rights.
Sir T. Upington said that Wessels was in
Wellington, and Ward left in sole control. Disputes
arose between Ward and persons who stated that
they held rights from sub-cencessionaires. Wessels
they knew nothing about ; Ward was in possession.
He contended that Ward should at any rate have
been made a party to that proceeding.
Mr. Justice Smith : Do you oontend that Ward
has the sole right to the property ?
Sir T. Upington : I say he has, Wessels having
taken the action he has. Proceeding, Counsel
said that if a man, as was done under this
agreement, parted with the possession of his
property for a certain period to another person,
and a stranger trespassed upon that property, the
occupier would deal with the trespasser. He
asked the Court also to remember that in the case
of Hall he stated positively that Welch, a sub-
concessionaire from Ward, had given him the right
to dig.
The Chief Justice : If Ward had brought the
action you would have said it ought to have been
brought by Welch,
Sir T. Upington said that supposing in this
case it were shown that Wilson had a right to go
there, as between himself and Ward, oould Wessels
go beyond Ward's right ? The point he wanted
to get at was whether Ward's possession was such
as to necessitate his being a party to that action.
If the Court were to decide that there was a real
injury to the reversion, as it was sometimes
called, the case would then be on quite a different
basis.
The Chief Justice : But can there be a moment's
doubt that there is an injury done to Wessels ?
The fact that Ward can take as many diamonds
as he can win does not allow others to come in.
Sir T. Upington said that if Ward, having the
right to go in, gave any number of people sub-
concessions, he could not bring any proceeding by
way of interdict restraining the persons to whom
he had granted such permission.
The Chief Justice said that the limited number
of people to whom Ward would grant concessions
would net represent as many as if anybody were
allowed to rush in.
Sir T. Upington said that the agreement was now
running. In the meantime Ward had absolute
oontrol, and the question was, whether Mr. Wessels
could obtain an interdict which shut up the whole
thing, notwithstanding all that Ward had done,
and put an end to the very valuable rights of all
these sub-concessionaires.
The Chief Justice, in giving judgment, said that
the case was so very plain that it was really un-
necessary to hear counsel for the respondent. Sir
Thomas Upington had with great oandour admitted
that, in view of the clear provision of the 76th
section of Act 19 of 1883, he oould not maintain
that the appellants in this case were entitled to dig
for diamonds upon the property in question until,
at all events, the mine had been proclaimed as a
mine by the Government, but looking at the affi-
davits before the Court that was not the view
which the appellants had up to the present time
strenuously maintained. In Mr. Wilson's affi-
davit it was set f erth that all the conditions neoes-
sary for the proclamation of the mine as a public
digging had been complied with, and that the mine
had been worked and dealt with as a public dig-
ging within the meaning of the Act of 1883. Mr.
Hall, in his affidavit, said that he had entered the
mine and pegged off a claim therein, but was
justified on account of the owner or concessionaire
having allowed the mine to be worked as a public
mine, by allowing mere than the number of
persons required by the Act to settle thereon. Mr.
Hall further deposed that the mine was in all
respects worked as a public digging, although not
formally proclaimed as such. But the most im-
portant provision of the 76th section of the Act
of 1883 was entirely lost sight of. It was that the
amount of licence meney, rent, or royalty to be
110
paid for every olaim should be fixed by the owner
of the mine, and he (the Chief Justice ) failed to
see what right even the Government would have
to proclaim this as a public digging or mine, until
the owner had fixed upon an amount of licence
money, rent, or royalty to be paid for eaeh claim
and if the Government had not a right a fortiori,
these appellants had not the right to go upon
private property without the consent of the
owners. Indeed, the admission of Sir Thomas
Upington clearly showed they had no right
whatever, but the technical objection was
now relied on that the wrong persons
were sued, and that the owner of the property was
not to be allowed to obtain an interdict to re-
strain people from trespassing on private property,
because he had given the option of purchase to
Mr. Ward. That was certainly one of the most
extraordinary contentions ever made in a court of
justice. They had hitherto looked upon the owner
of the land as the person to warn off all persons
wrongfully on that land. It might be quite true
that the owner must show that his reversion
was injured. He (the Chief Justice) was of
opinion that the respondents reversion, whatever
that might be, had been injured by the occupation
of the appellants in this case. The owner had
given oertain rights to Mr. Ward, to dig for
diamonds during the time he had for exercising
bis option of purchase, and Mr. Ward might win
many diamonds, and allow others to do so, but that
was very different from allowing the whole world
to go in and win many more diamonds than
Mr. Ward er his sub-concessionaires. It appeared
quite dear that the judgment was right, and to
some extent even more beneficial to the present
appellants than it might have been, because the in-
terdict was granted pending an action to be insti-
tuted. The Court would be quite justified in
saying that before any action was brought it
would order persons who had forcibly taken pos-
session of private property to cease working until
the question was decided. However, there was
now no appeal against that portion of the judg-
ment, and all the Court could do was to dismiss
the appeal with ooBts.
Mr. Justice Smith said he was entirely of the
same opinion.
Mr. Justice Buchanan remarked that he did net
think the case was arguable.
The decision of the Court below was therefore
upheld.
[Attorneys for the Appellants Messrs. Van Zyl
& BuiBsinne, for the Respondent Messrs. Keid &
Nephew.]
In re THE GAPE CENTRAL RAILWAYS.
Company in liquidation — Sale of Company's
assets — Confirmation.
Mr. Schreiner appeared on behalf of Sir T. C.
Boanlen, official liquidator of the Cape Central
Railways ; and Sir T. Upington, Q.C., with Mr.
Juta, represented Mr. John Walker, a oreditor of
the company.
This was an application for a final order of
Court sanctioning the sale of the Cape Central
Railways. An order was granted on the 13th
April sanctioning the sale of the line, on condition
that the purchase money was lodged in the Bank
of England in tbe joint names ef the effioial
liquidator in England and the official liquidator
here. A slight variation of the first order was
subsequently made, and now it was suggested, be-
cause of the state of the English money market,
the purchaser hesitated to oomplete the trans-
action, taking up the position that he objected to
the slightest variation of the order of the Court.
The debts of the company in the Cape Colony were
£2,187 12s. lid., including the sum awarded to Mr.
Walker in a recent action. The official liquidator,
oounsel stated, had £7,300 in the Standard Bank,
which was more than sufficient to meet all
claims, and as the contract for the sale of the
line would lapse on the 28th May the Court waa
now asked to sanction the sale of the line in accord-
ance with the original order.
Sir T. Upington said that the £7,800 would not
cover all the claims in the Colony. No leas than
£10,000 ef debentures were held at the Cape. If,
however, Sir T. Scanlen would undertake to hold
the money now in the Standard Bank he would be
perfectly satisfied.
Mr. Schreiner said that such an offer had already
been made.
The Court granted the order as prayed, and de-
clined to make any order as to costs.
SUPREME COURT.
TUESDAY, MAY, 19.
[Before the Chief Justice (Sir J. H. DE
VILLTER8), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
GROOM AND WHITE V. THE BECHU AN ALAND
EXPLORATION COMPANY, LIMITED.
Mr. Searle and Mr. Shiel appeared for the
plaintiffs, and Sir T. Upington, Q.C., and Mr
Schreiner for the defendant company.
This case, which was partly heard last tern)
came on for further hearing.
iii
Sir T. Upington applied for the pogtponement
of the cue until the arrival in Cape Town of Mr.
Harman, an important witness.
Mr. 8earle opposed the postponement.
The Court, after hearing counsel, postponed the
oate till Monday, the 1st June, the defendant com-
pany to pay the costs occasioned by the postpone-
ment.
PHILLIPS V. PHILLIPS.
Mr. Giddy appeared for the plaintiff (the hus-
band) ; the defendant in default.
The further hearing of this case, which was
partly disposed of last term, was resumed.
The Court, after hearing counsel, granted a
decree for restitution of conjugal rights, failing
which the defendant to show cause on the 1st
August why a decree of divorce should not be
granted.
VILLA V. VILLA.
Mr, Juta appeared for the plaintiff (the
husband) ; the defendant in default.
This was an action for divorce instituted by
Guaieppe Villa against his wife by reason of her
adultery with certain persons unknown. The parties
were married in Cape Town in December, 1889,
and some months after the marriage the plaintiff
began to entertain doubts as to his wife's fidelity.
In November, 1890, Villa and his wife separated,
aid subsequently in December he found her living
u a house of ill-fame in Cape Town.
Evidence having been given as to the suspicious
conduct of the defendant, the Court granted a
decree of divorce, the defendant to forfeit all
benefits under the community.
BUSSOUW V. BU880UW.
On the motion of Mr. Castens, the Court made
absolute the rule nisi dissolving the marriage sub-
sisting between the parties, and giving the mother
(the plaintiff) the custody of the children.
IH BE THE ZOUTBPAN8BEBG PALMIETFONTEIN
ESTATE COMPANY.
Company — Bank in liquidation — Proof of
debts allowed notwithstanding that period
for proof had expired.
On the application of Mr. Tredgold, the Court
granted the above-named oempany leave to file a
proof of debt far the sum of £477 8s. 6d. against
the Paarl Bask (in liquidation), notwithstanding
that the period fox such proof expired on the 81st
March last.
OAMPAAN V. OAMPAAN.
Mr. Jones moved to make absolute the rule nisi
for the dissolution of the marriage subsisting
between the parties.
The Court made absolute the rule am, with oosts
against the husband.
HOPKINS V. HOPKINS.
On the motion of Mr. Sohreiner, the Court
granted further extension of the rule nisi
admitting the applicant to sue her husband for
restitution of conjugal rights by edictal citation.
PETITION OF MICHAEL CUNNINGHAM.
On the application of Mr. Graham, the Court
made absolute the rule nisi for the cancellation of
a certain deed of transfer of portion of lot No. 124,
Rufane Vale, in Port Elizabeth, in favour of
James Maloney.
IN THE ESTATE OF THE LATE JOHN BROWN
EVANS.
Trustee, appointment of, to administer
trust fund constituted by antenuptial
contract.
Mr. Searle appeared for the petitioner, the
widow of the late J. 8. Bvans, and prayed for the
appointment of a trustee to administer the trust
fund arising ant of a settlement made in the ante-
nuptial contract between Edith Mary Partridge
(the petitioner) and deceased.
It appeared from affidavit that petitioner was
married to the late Mr. Bvans in February, 1884.
By an ante-nuptial oontract the sum of £2,100 was
settled upon the wife and was made a first charge
en the estate. There were funds in hands to meet
the claim, but no trustee had been appointed under
the will.
The Court granted the order as prayed for, and
appointed the person named in the petition
trustee.
BBUNNEB V. DE VILLIEBS.
Attachment of portion of inheritance to
satisfy judgment debt.
Mr. Juta moved, on behalf of applicant, for an
order authorising the Sheriff to attach so much of
an inheritance devolving upon the respondent, but
at present in the hands of the Master of the
Supreme Court, as will satisfy a judgment debt
and oosts in favour of the applicant.
It appeared that the amount coming to the
respondent was £822 10s., applicant's claim being
for £27 7s. 5d., and the costs of the present
application.
The Court granted the order as prayed for.
ii2
LIND V. VAN DBR VEEN.
Perpetual silence, Decree of.
Where V. had threatened to bring an action
against L. for negligence the Court refused
to issue a decree of perpetual silence against
Y. on the latter's undertaking to proceed
with the action within a reasonable time.
Mr. Searle appeared for the applicant, and Sir
T. Upington, Q.C., and Mr. Juta for the re-
spondent.
This was an application for an order requiring
the respondent to proceed with her action against
the applicant in respect of her claim for the
amount ef loss sustained in investments made on
her behalf, and failing such proceedings being
taken within six weeks, that she might be for ever
debarred from bringing the said action. It
appeared from the affidavits read that the appli-
cant, who is an attorney practising at Oudtshoorn,
had advised the respondent to make money ad-
vances on certain securities whioh it was alleged
had proved worthless, or nearly so. In consequence
of this the respondent had threatened
to institute an action for damages against
the applicant, but up to the present she
had taken no further steps in the matter. The
applicant alleged that the report of this impending
aotion having been freely circulated about the dis-
trict, was injuring him very considerably in his
business as an attorney, and he was anxious that
Mrs. Van der Veen should either be ordered to
bring her action at once, or that a deoree of per-
petual silence should be issued against her. The
respondent, in an answering affidavit, stated that
she could not estimate the damage which she had
sustained until the crops in a certain insolvent
estate had been valued.
Mr. Searle, in supporting the application, con-
tended, on the authority of Van der Linden (pp.
883,426), that the respondent should bring her
aotion within six weeks, or be for ever silent.
Counsel also referred to the cases of " Bergh v.
Smuts" (3 Mens., 683), "Norden v. Kilian and
Stein" (8 Mens., 650), "Campbell v. Douglas"
(1 Searle, 48), and the " Municipality of Worcester
v.DuToit" (2 Juta, 188).
Sir T. Upington, for the respondent, submitted
that so important a decree as that of perpetual
silence should not be ordered merely on the vague
affidavits which the Court had heard.
The Chief Justice remarked that no order would
be made on the present application, but the
respondent must proceed with her aotion at the
next Cirouit Court, costs to abide the event.
THE GAPS OF GOOD HOPE BANK (IN
LIQUIDATION.)
Third Report.
Mr. Schreiner, en behalf . of the official liquida-
dators of the above bank, presented the following
report (third) for the confirmation of the Court :
1. The liquidators herewith submit the first
liquidation accounts of the affairs of the bank
brought down to the 28th February, 1891, being
the last day fixed by the Honourable the Supreme
Court for the filing of claims.
2. The liabilities have been red iced by sets-off
to £2,041,381 17s. Id., as per statement filed here-
with. This amount is subject to further altera-
tions by adjustments of accounts.
8. The total amount of claims proved and
admitted up to 28th February last was £2,019,717
6s. 4d., and on these claims two dividends aggregat-
ing 10s. in the £ have been paid.
4. The amount received on account of the call
of £30 per share up to the 28th February last
is <£264,789 2s. 8d., and including receipts up
to the 30th ultimo, £292,902 6s. lid. There is
every prospect of the original £326,000 being
reached.
6. The liquidators will have sufficient funds at
their disposal to pay a third dividend of 2s. 6d. in
the £ on the 1st June next.
6. The premises and furniture belonging to the
bank in Cape Town and Graaff-Reinet have been
disposed of satisfactorily, viz., the former for
£16,000 and the latter for £2,600.
7. The disbursements attendant on the liquida-
tion of an institution having fourteen places of
business have necessarily been considerable, and
these were further increased by the heavy law
costs forced upon the liquidators in the Transvaal,
in removing the provisional liquidators appointed
in that State and paying the amount fixed by the
High Court as their remuneration. The order of
that Court appointing us sole liquidators in the
Transvaal could not be obtained until 17th
November last, when measures were taken
for reduoing the staffB there, as had previously
been dene with those in the Colony, to the
lowest point consistent with efficiency. This ob-
ject is being steadily kept in view. The branches
at Oudtshoorn, East London, and Queen's Town
have already been closed, and those at Graaff-
Reinet, Graham's Town, and London will be
closed on the 81st instant, and as the liquidation
proceeds other branches will soon follow.
8. With the view of facilitating the disposal of
the great accumulation of books and papers, the
liquidators were authorised by an order of your
honourable Court, dated 13th April, 1891, to
destroy such books and papers of a date prior to
1888 as may be found of no further use.
113
9. At several creditors omitted filing their
claims by the 28th February last, the liquidators
recommend that the time for filing claims be
farther extended to the 31st day of July next.
10. On the 3rd October, 1890, this honourable
Court granted an interdict restraining the Regis-
trars of Deeds in Cape Town, Kimberley, and
King William's Town from passing any transfer or
bonds by any shareholder in the said bank,er from
cancelling any bonds in favour of any shareholder,
or registering any cessions of any bond standing
registered in the name of any shareholder ; also
the Treasurer ef the Colony from registering any
cession of Government debentures or stock regis-
tered in the name of any shareholder in the said
bank, and the Counoils of all Municipalities in
the Colony from registering any cession of
Municipal debentures or stock registered in
the name of any shareholder in the said
bank without the consent in writing of the
official liquidators. The liquidators now propose
that a discharge should be granted by this honour-
able Court from the operation of the said interdict
to all who have paid or satisfied their calls on
shares held by them in the bank, and annex
hereto a list containing the names of shareholders
entitled to receive a discharge, and recommend that
an order which oan be filed with the respective
Registrars of Deeds be granted, discharging them
accordingly.
11. Provisional liquidators were appointed here
on the 23rd September, 1890, and held office till
the 26th March, when the present liquidators took
their place.
A letter herewith annexed has been received
from three of the said liquidators, raising the
question of their remuneration for their services
during that time. The Court is respectfully
requested to consider the matter, and to award
inch sum as may appear to them to be reasonable
for said services.
12. The liquidators now ask the Court :
(1) To confirm the liquidation account sub-
mitted herewith.
(2) To sanction the extension of time for the
filing of claims to the 31st July next.
(3) To grant an order discharging oertain share-
holders from the operation of the interdict of
October 3, 1890.
(4) To fix some remuneration for the provisional
liquidators.
Mr. Schreiner said he did not ask for any order
*t present as to remuneration to liquidators.
The Court confirmed paragraphs 2 and 8 of
tectioa 12, and made the usual order as to publica-
tion.
PIET V. PIET.
On the motion of Mr. Molteno, the rule nisi was
made absolute admitting applicant to sue in forma
pauperis in an action against her husband for divorce
by reason of his adultery.
IN THE INSOLVENT ESTATE OF LOUIS J.
SCHOEMAN.
On the application of Mr. Watermeyer, the
Court made absolute the rule nut for authority to
the Registrar of Deeds to pats transfer of the
farm Galgenbosch, otherwise Drooge Rivier, and
land adjoining, to the purohaser thereof from the
said estate.
PETITION OP WILLIAM WHEELEB.
On the motion of Mr. Molteno, the Court
granted the applicant leave to sue in forma
pauperis in an action against his wife for restitu-
tion of conjugal rights, failing which for divorce.
ABBAHAMSE V. ABBAHAMSE.
On the application of Mr. MoLachlan, the
Court granted a rule nisi calling upon respondent
to show cause why applicant should not be
admitted to sue in forma pauperis in an action for
divorce.
BEOINA V. MASEBI AND BAM8ITSANI.
A.ct 23 of 1879, section 9 — Non-compliance
with terms of section — Conviction quashed.
Mr. Giddy appeared on behalf of the Crown, and
Mr. Juta for the prisoners.
This was an appeal from a sentence of the Resi-
dent Magistrate of Matatiele. It appeared from
the record that the prisoners were convicted under
section 9 of the Vagrancy Act of 1879.
The Court held that the provisions of section 9
had net been complied with, and consequently
quashed the conviction.
BEOINA V. BUSSOUW.
A.ct 20 of 1861, section 10— Transmitting
false telegrams— Telegraph regulations —
Locus pccnitentice — Conviction quashed.
This matter came on for argument on a peint
reserved at the last Circuit Court held at Malmes-
bury.
Mr. Giddy appeared on behalf of the Crown ,
and Mr. Jones for the prisoner.
The prisoner was indicted, and found guilty of
having contravened Act 20 ot 1861, section 10, in
that on the 9th Ootober, 1890, he caused to '
transmitted to Kimberley a etrtain tejr-
ii4
N
message, knowing the same to he false. The only
evidence for the prosecution was that of a clerk in
the Telegraph Department named Morrell.
According to Morrell's evidenoe, the prisoner
handed him a telegraph form with the message
written on it. Shortly afterwards the prisoner
appears to have changed his mind abont sending
the wire, and told Morrell not to despatch it.
Morrell, however, explained to him that, according
to the ruleB of the service, he oonld not return a
message which had been received over the counter,
and consequently the me c sage was sent.
Mr. Jones, on behalf of the prisoner, submitted
that the Postmaster-General had no statutory
power to issue rules of this nature as affecting the
public, and that his action in so doing was ultra
vires. As between himself and his subordinates in
the department, no doubt he had power to make
regulations, but these regulations could not affect
the general public. In any case the prisoner had
exercised his locus pasnitentue, and the message bad
been sent against his wish and instructions.
The Chief Justice, in giving judgment, remarked
that the point reserved was an interesting one.
If the prisoner had knowledge of the regulations
referred to in the argument, then hiB subsequent
repentance would not avail him. There was no
evidence, however, to show that he was aware of
the regulations, and under the circumstances he
was entitled to the benefit of the doubt. He had
exercised his locus pomitentia, as he had a right to
do, and he (the Chief Justice) was of opinion that
the conviction ought to be quashed.
Mr. Justice Smith concurred.
Mr. Justice Buchanan remarked that, in con-
curring with the judgment of the Chief Justice, he
was not to be understood as implying that the
more important point had been decided, namely,
whether a person having handed in a message and
paying for it had the power of subsequently can-
celling the message.
ZAHN V. DU PBKEZ.
Account— Action for balance of Summons
" sufficiently specific"— Exception— Appeal
—Case remitted.
Mr. Schreiner for the appellant, and Mr. Searle
for the respondent.
This was an appeal from a decision of the Resi-
dent Magistrate of Worcester.
In the case heard before the Magistrate the
appellant, Dr. Zahn, sued the respondent for £10,
medical attendance on Miss Du Preee. The
defendant (present respondent) denied the debt,
v ^and took the exception that the summon was not
specific enough, inasmuch as it did not allege
whictTMiss Du Prees had received medical attend-
ance. The Magistrate upheld the exception and
dismissed the case. From this decision the re-
spondent now appealed.
Mr. Schreiner, in support of the appeal, con-
tended that the Magistrate had erred in not
allowing the plaintiff to make his case, and that
the summons was sufficiently specific.
Mr, Searle, for the respondent, submitted that
the summons was not sufficiently specific, and that
the plaintiff ought at least to have mentioned Miss
Du Preez's christian name. Further, that when
the exception was taken the plaintiff ought either
to have applied to have the summons amended or
to have produced a witness to identify his patient.
Counsel also referred to Act 20 of 1866, section 62,
upon which he mainly relied.
The Chief Justice, in delivering judgment, re-
marked that the Magistrate had clearly erred in
upholding the exception. The appeal would be
allowed and the case remitted to be decided on its
merits.
[Attorneys for the Applicant C. C. Silberbauer,
for the Respondent Messrs. Fair bridged Arderne.]
SUPREME COURT.
WEDNESDAY, MAT 20.
[Before the Chief Justioe (Sir J. H. DB
Villiees), Mr. Justioe SMITH, and Mr.
Justice Buchanan.]
BEGINA V. PIET ABENDS.
Incest— A man who marries or has carnal
knowledge of his illegitimate daughter
commits the crime of Incest.*
Mr. Giddy appeared for the Crown ; the prisoner
was not represented by counsel.
This case came on for argument yesterday (May
* A view of the English Law on this subject may
not prove uninteresting. I quote from Stephen—
Dig. Crim. Law, p. 118.— Ed.
"Every person who commits incest, adultery, forni-
cation, or any other deadly sin (not punishable at
Common Law), is liable upon conviction thereof in an
ecclesiastical Court to be directed to do penance, and to
be excommunicated, and to be imprisoned for such
term not exceeding six months as the Court pronoun-
cing the sentence of excommunication may direct."
18 Edw. I., c 4 ; 63 Geo. 111., c 127, §§ 1-3 ; and see
Phillimore's Eccl. Law, 1,061, 1,442 : also PkilUmore v.
Machon, 1 P.D. 461 ; Co. Litt. 96 b. Incest though not
mentioned in the statute " Circumspecttagatis," is the
only offence which in these days is ever prosecuted
under the law here stated. Such a prosecution occurred
within the last few years in the Bishop of Chichester's
Ceurt. See 8, Hist. Cr. Law 8M— 4S8j
115
19) on a point reserved by his lordship Mr.
Justice Buchanan at the last Circuit Court held at
Beaufort West. The prisoner was indicted for the
crime of incest, in that he had had carnal know-
ledge of his illegitimate daughter, the point re-
served being a whether under the circumstances
the prisoner could be oonvicttd of that crime, and
whether in fact carnal knowledge on the part of a
man with his illegitimate daughter did amount to
incest.*' The jury brought in a special verdict, and
found that the girl was the daughter of the
prisoner, although there was no evidence that he
had been married to the girl's mother, and that he
had had carnal knowledge of the girl.
Mr. Giddy, on behalf of the Crown, argued at
length that the fact of a man's not having gone
through the form of marriage could not affect the
blood relationship which existed between himself
and a daughter born of him while he was living in
a state of concubinage, and that if a man had
carnal knowledge of his natural child, under such
circumstances he committed the crime of incest.
In support of his contention counsel referred to
Matthseus de Criminibus, "Regina v. K"
(Buch.Repe., 1875, p. 98), and " Regina v. The
Inhabitants of Brighton" (30 LJ., N.S., M.C.,
197).
The Court reserved judgment.
This morning (May 20) the Chief Justice, in
delivering judgment, detailed the facts of the
case, and remarked that very few authorities had
been quoted in argument. After the adjournment
yesterday he had looked up some of the authorities,
and as the main point which they had to decide
was whether a man could marry his
illegitimate daughter the following passage
from Voet (23, 2, 35) bore directly on the point :
tt Nor do marriages appear to be permitted between
a denier and such a relation by blood of the woman
defiled as would, if instead of illicit intercourse
there had been marriage, have been prevented
from marrying him on account of affinity arising
out of such marriage, nor vice versa between the
woman and a similar relation by birth of the
denier ; provided only there were undoubted proof
of the illicit intercourse. At any rate it is certain
that blood relationship arising not only from law-
ful marriage but from illicit intercourse is an im-
pediment to marriage (Dig. 23, 2, 54). It makes
no difference whether the relationship arises from
marriage or not, for a man is prohibited from
marrying his sister who has been begotten of a
prostitute. ... All this quite agrees with t he
modern view that marriages are condemned where
there is any relationship arising out of illicit
intercourse (Carpz Def. For, p. 4, c. 23, def
10), and this view is clearly adopted by
the Bchtreg Court of the Staten-Generaal,
18th March, 1666, art. 68-66 (2 Plao. B. 2,441)."
In view of this authority he (the Chief Justice)
was clearly of opinion that by our law the
marriage of a man with his illegitimate daughter
was forbidden. According to Voet, there must be
clear proof that blood relationship does exist. In
the present case the jury had found that the girl
was the prisoner's daughter, and that he had
carnal knowledge of her. Such being the case, the
prisoner was rightly convicted. The point re-
served must be decided against the prisoner, and
the conviction upheld.
Mr. Justice Smith concurred.
Mr. Justice Buchanan remarked that he had
reserved the point at the trial of the case at the
last Circuit Court held at Beaufort West. He
knew that English common law did not recognise
the crime of incest, and was under the impression
that by Scotch law the circumstances in this case
would not have been punished. The reference to
Allison (made by Mr. Justice Smith) showed that
under Scottish law the prisoner would not have
been punished. The only Dutch authority he
could refer to on Circuit was Van der Linden, who
only dealt with the subjeot in general terms, and
the reference in Voet was only clear where there
was blood relationship, and not affinity. Prisoner
had been undergoing his punishment sinoe the
passing of sentence.
MYEKULU V. 8IMKIN8.
Attachment — Ille?al — Messenger of Court —
Act 20 of 1856, section 53 — Magistrates'
Court Regulations — Rule 58 — Interpleader
— Action — Appeal .
Mr. Sohreiner appeared for the appellant.
This case, which was argued yesterday (May
19), was an appeal from a decision of the Resident
Magistrate of Queen's Town. The appellant (the
plaintiff in the Court below) had sued the re-
spondent for the delivery of oertain three head of
oattle unlawfully attached by the defendant, the
messenger of the Court, in satisfaction of a judg-
ment which had been obtained against the appel-
lant's son, Benjamin Myekulu, in the Resident
Magistrate's Court of Wodehouse, and also for £6
damages in consequence of the illegal seizure and
detention. The Magistrate dismissed the case on
the grounds that the defendant, the messenger of
the Court (through his deputy), had acted bona
fide, and had not been guilty of negligence in seiz-
ing the cattle in question. From this judgment
the plaintiff now appealed.
Mr. Schreiner, in support of the appeal, con-
tended that there had been gross neghgenoe on the
part of the respondent, inasmuch as the appellant
had pointed out to the former that the cattle
which were being seized were his property, and.
116
not his son Benjamin's. Counsel further con-
tended that when the question of ownership by a
third party was raised, the Magistrate ought to
hare ordered interpleader proceedings—" Lonw v.
Fife." (2 Juta, 65). Counsel also referred to Act
20 of 1856, section 53, and directed the attention
ef the Court te the English law on the subject of
the liability of sheriffs in oases similar to the one
under consideration, referring more particularly
to " Addison on Torts," 4th ed., p. 650, and to the
following oases : " Jarmain v. Hooper " (6 M. <fe
Gr., 847), " Dawson v. Wood " (8 Taunton, 260),
"Glasspoole v. Young" (9 B. <fe C.,701), and
" Olivier v. Keating" (Foord's Reports, p. 102).
The Court reserved judgment.
To-day (May 20) the Chief Justice delivered
the following judgment : He said he was dearly
of opinion that the Magistrate had erred. The
defendant, the messenger of the Court, attached
certain property belonging to the plaintiff, having
at the time had notioe that the cattle were claimed
on behalf of the plaintiff. Notwithstanding this
notice, he proceeded with his attachment, and gave
notioe to the Magistrate. Now, the duty of the
Magistrate on receiving the report of the messen-
ger was, under the 53rd section of Act 20 of 1856,
and the 68th rule of Magistrates* Court
Rules, to have issued an interpleader sum-
mons to decide the question of ownership. If
such a summons had been issued, the effect
would have been to stay all proceedings
which might be brought in that or any
other court against the messenger for illegal
attachment. Instead, however, of going on with
interpleader proceedings, they were dropped on
account of a notice given by plaintiff that he in-
tended to bring an action. This was where the
Magistrate and the messenger had erred. The mes-
senger ought t > have put the law in motion, and
the Magistrate to have issued the interpleader
quite independently of any action being brought
by the plaintiff. If the interpleader had pro-
ceeded this particular action would have been
stayed, and all costs incurred would have had to
be paid by the plaintiff. But the interpleader not
having been issued, the plaintiff was justified in
proceeding with his action against the defendant,
and entitled to judgment, inasmuch as it was
quite clear that the cattle belonged to him and not
to the judgment debtor. The Magistrate there-
fore erred in not giving judgment for the plaintiff.
He ought to have given judgment for the delivery
of the cattle or their value, and for such damages
as he might find the plaintiff had sustained. The
Court were of opinion that no serious damage had
been sustained by the appellant, and that 10s.
would be sufficient damages under the circum-
stances. The judgment ought, however, to be
altered to one of judgment for the plaintiff for
re-delivery of the cattle or their value (£15) and
10s. damages, with costs in this Court and in the
Court below. Practically the appeal only came en
the question of costs, as Mr. Sohreiner had admitted
that the cattle were delivered after judgment.
[Attorneys for the Appellant Messrs. Soanlen &
Syfret].
PBEI88 V. OLUCKMAN.
Waggons — Contract to make — Delivery —
Acceptance — Workmanship — Action.
Mr. Juta and Mr. Jones appeared for the plain-
tiff, and Mr. Sohreiner and Mr. Thome for the
defendant.
This was an aotion instituted by the plaintiff, a
wagonmaker of Robertson, against the defendant,
a trader of the same place, for the sum of £242
14s. lOd. with interest a tempore mora. It ap-
peared from the declaration that on the 18th
Deoember, 1 889, the parties entered into an agree-
ment by which the plaintiff was to make for the
defendant as many wagons as he could during a
period of one year, reckoned from February,
1890, the defendant to supply the materials and
the plaintiff to receive £30 for eich wagon. Acting
under this agreement the plaintiff made thirteen
wagons, of five of which the defendant accepted
delivery, and paid plaintiff the sum of £190. The
other eight wagonB defendant refused to accept
on the grounds that they had not been
turned out in a good and workman-
like manner. Plaintiff, in addition to the
balance of account due in respect of the wagons,
namely, £200, claimed the sum of £42 14s. lOd. for
work done and money and materials supplied, either
to the defendant or to his duly-authorised agent.
The defendant, in his plea, denied that the wagons
had been completed in a proper and workmanlike
manner, in accordance with the terms of the con-
tract, and alleged that the cost of completing the
work would amount te £80. Defendant further
alleged that he had hired the services of the
plaintiff to make the wagons in question out of the
material supplied by him (defendant), and that he
had actually paid plaintiff £202, and not £190, as
plaintiff stated. Defendant also counter-claimed
for the sum of £80.
Upon these facts and pleadings issue was joined.
Mr. B. Preiss, the plaintiff, examined by Mr.
Juta, detailed the circumstances connected with
the making of the contract, and stated that the
wagons were made in a workmanlike manner, and
were as good as could be expected, considering the
inferior material, namely, green wood, with which
He had been supplied by the defendant. The
woodwork of the wagons had shrunk in some
places, and a few of .the tires were loose, but this
117
wm partly due to the long time the wagens had
been exposed to the sun and rain.
Gross-examined by Mr. Schreiner, the witness
itated that he had no recollection of having seen
in account in Mr. Gilliers's office, nor did he
remember entering at all into the question of
accounts. Defendant had done very well out of
the five wagons which he took to the Free State,
some of them having been sold at prices varying
from £136 to £ 150. Defendant would have taken
the other eight wagons if he (witness) had con-
sented to give 'him three months' credit. In
January the wagons were as good as they could be,
considering that they had been made of green
wood. The wheels that were not exposed to the
sun were quite good still. He knew a
Mr. During, a wagonmaker residing in Robert-
son, but he did not know what
opinion he had formed of his (plaintiff's) work ;
but this much he did know, that it was
very easy for one man to find fault with another
man's work. Since January the wagons had got
into bad condition. The wings had been properly
made and were about three inches from the
wheels. The defendant and Gilliers thoroughly
examined the wagons, but the latter came with
the intention of finding fault bo that legal pro-
ceedings should result.
Re-examined by Mr. Juta: Green wood lonly
costs about half the price of well-seasoned wood.
Some of the tires supplied were short and he had
to lengthen them. Wings were made of various
breadths by different wagonmakers.
The correspondence which had passed between
the parties was then read by Mr. Juti and put in.
The hearing of the evidenoe had not concluded
when the Court adjourned.
: COURT,
THURSDAY, MAY 21.
Before the Chief Justice (Sir J. H. DE
VlLLIEBS), Mr. Justice SMITH, and Mr.
Justice Buchanan.
PBEISS V. GLUCKMAN.
The farther hearing of this case was resumed
this morning, the plaintiff being represented as
before by Mr. Juta and Mr. Jones, and the
defendant by Mr. Schreiner and Mr. Thome.
Mr. William Segar, a wagonmaker, residing in
Robertson, examined by Mr. Schreiner, stated that
in his opinion the wagons had not been turned out
in a workmanlike manner. He had carefully
examined the wagons, and he did not think that,
in their present condition, they were saleable. He
would be very sorry to turn out such specimens
of work from his shop. The spokes were loose,
and the wheels generally were in such bad condition
that it would be impossible to take the wagons on
a long jeurney. He thought that on an average
the cost of putting each wagon in proper condition
would be from £8 to £10. He personally would
not undertake to put them in saleable condition
for less than £80
Cross-examined by Mr. Juta : He learned his
trade in England. He did not work at it after his
arrival in the Colony, but during the past two years
he had been working as a wagonmaker. He was
not an architect, and was not aware that he was
known as " the architect " in Robertson. Archi-
tects do not serve an apprenticeship. [ Mr. Juta :
No ; I suppose they are born, like poets.] He
(witness) had seen the wagons in January last, and
in some respects he thought they had improved
since that time. The wings were about an inch
from the wheels. If they had been properly made
they ought to have been at least four inches
distant.
In answer to the Court, the witness stated that
he had examined the wagons at the request of the
defendant, and that the plaintiff was in his shop at
the time.
Several other witnesses were called, and they all
agreed with Mr. Segar that the wagons had been
badly made, and were at present in a wretched
condition.
The plaintiff, on being recalled by the Court,
stated that the wheels were painted by men em-
ployed by the defendant, who at that time raised
no objection to the quality of the work.
The defendant, however, on being recalled,
denied this statement.
After hearing counsel, the Court gave judgment
for the plaintiff for £190 and costs.
[Attorneys for the plaintiff Messrs. Findlay A
Tait, for the defendant Messrs. Van Zyl &
Buissinne.]
PROVISIONAL ROLL.
ESTATE ROBERTSON AND BAIN V. DU PLESSII.
On the motion of Mr. Schreiner, provisional
sentence wsb granted on a promissory note for
£26 9s. 7d., payable at the Western Province Bank,
Paarl.
BOABD OF EXECUTORS V. MALAN.
On the application of Mr. Molteno, provisional
sentence was granted for £18, interest on a mort-
gage bond for £600, and for £6 7s., fire insurance
premiums paid by plaintiff.
118
HIRST V. MULLEB, SMIDT AND CO.
Mr. Molteno applied for discharge of the pro-
visional order for sequestration, as the parties had
arrived at a settlement.— Discharge granted.
UYS V. BAARTMAN.
Provisional sentence — Liquid document —
Every document upon which provisional
sentence is prayed must be stamped.
Mr. Juta moved for provisional sentence for
£200 on a lease of property situated in the Trans-
vaal.
Counsel directed the attention of the Court to
the fact that the lease was not stamped, inasmuch
as it had been executed in the Free State.
The Chief Justice observed that every liquid
document upon which provisional sentence was
prayed should be stamped. The necessary 5s.
stamp having been affixed, the Court granted pro-
visional sentence as prayed for.
THE UNION BANK, IN LIQUIDATION V. UTS.
Provisional sentence — Promissory Motes —
Cession — Defence — Fraud.
Mr. Sohreiner applied for provisional sentence
•n two promissory notes, one for £72 15s., and the
other for £155, passed in favour of G. H. Moller
and ceded by him to the Union Bank.
The defendant appeared to oppose provisional
sentence and said that he did not owe the Union
Bank anything. Defendant, however, admitted
his signature on the notes, but said that Moller
deceived him. He ed Moller £75, but the note
for £155 had been filled in after he had signed it.
The Chief Justice, addressing the defendant,
said that he had better go to the Attorney
General, and lay his oase before him.
Mr. Schreinor pointed out to the Court that the
statement made by the defendant with regard to
Moller had already been the subject of magisterial
investigation, and that the record had been sent to
the Attorney-General.
The Chief Justice : And was Moller not com-
mitted for trial ?
Mr. Sohreiner : That is my opinioo, my lord.
The Chief Justice : If the defendant's statement
is true I am surprised that Moller has not been
committed for trial.
Mi. Graham. said that, in justice to Mr. Moller,
he might state that the charges made against Mr.
Moller had been fully inquired into, and they in-
cluded the present statement made by defendant.
The Chief Justice : That is no re son why he
should not again go to the Attorney-General.
The Chief Justice then told the defendant that
the Court could not assist him; he had
signed the notes in favour of Moller, and on the
strength of his signature the bank had advanced
money, and was now entitled to judgment.
Provisional sentence was granted as prayed for.
S.A. LIFE ASSURANCE SOCIETY V. HARTINGH.
On the motion of Mr. Thorne, provisional sen-
tence was granted on a mortgage bond for £1,300,
less £300 paid on account, with interest on £1,000,
less £10 paid on account; property declared
executable.
S.A. LIFE ASSURANCE SOCIETY V. MULLER.
On the application of Mr. Thorne, provisional
sentenoe was granted on a mortgage bond for £ 10O ;
property declared executable.
SLUITEB Y. MALAN.
On the motion of Mr Juta, provisional sentence
was granted on £42 8s. 6d., money advanced.
STEYTLER V. COHEN.
On the application of Mr. Jones, provisional
sentence was granted for £153 4s. 6d., balance of
account.
VAN BELOW V. TIENGO— DUNCAN V. TIENGO.
Attachment — Postal drafts — Rule nuri
operating as provisional attachment.
Mr. Sohreiner presented the petitions of these
applicants, and prayed that certain postal drafts
recently purchased by the defendant, and
supposed to be in possession of his wife, might
be attached in satisfaction of certain claims which
the applicants had against the defendant.
It appears that the defendant, who is an
Italian, had until quite recently been a contractor
on the railway. Some Bhort time ago he realised
all his effects, and came down to Cape Town under
an assumed name, with the intention of leaving
the Colony for Italy without having paid his
debts.
The Court, after hearing counsel, granted a rule
nisi, returnable on Wednesday next, calling upon
the defendent to show cause why the postal drafts
should not be attached by the Sheriff to abide the
further order of the Court. The rule to operate
as a provisional attachment.
lie
LBVATTB V. LEVATTE.
Mr. McLachlan appeared for the plaintiff ; the
defendant in person.
This was an action for divorce instituted by Mr.
John Levatte, of the Salt River Works, against
his wife by reason of her adultery. The parties
hare been separated for the last two years.
Dr. J. Hewitt, examined by Mr. McLachlan,
stated that he knew the defendant, and had
attended her in her confinement about four weeks
ago, when she was delivered of twins.
The plaintiff then entered the box, and detailed
certain circumstances connected with his wife's
infidelity.
The Court, after patiently listening to evidence
of a very trying character, granted a deoree of
divorce, with custody of the two children of the
marriage.
SUPREME COURT.
FRIDAY, HAY 22.
[Before the Chief Justice (Sir J. H. DB Villiers,
Mr. Justice SMITH, and Mr. Justice
Buchanan.]
the union bank, in liquidation v. uts
Mr. Schreiner said that with regard to this
matter, which was before the Court yesterday, he
found that he had been in error in stating that
Mr. Muller had not been committed for trial.
The Chief Justice : If that is so, there is no
occasion to go to the Attorney-General, but it
occurred to me yesterday that possibly Mr. Uys
could produce further evidence. I did not for a
moment assume that the Magistrate or the
Attorney-General had acted improperly.
The Attorney -General remarked that the
evidence taken at the preliminary examination
mid been laid before him, and after thoroughly
sifting it and the facts elicited in cross-examination,
he did not feel justified in proceeding further
with the case. But if Mr. Uys could produce
any further evidence it would receive his (the
Attorney-General's) careful attention.
15 BE THE OMARUBU G.M. COMPANY, LIMITED.
Winding-up Act- No. 12 of 1868— Applic-
ation to be placed under operation of.
Mr. Juta, on behalf of the directors of the
above-named company, moved for an order plaoing
thecmpany under the operation of the Winding-
up Act
It appeared from an affidavit, sworn to by Mr.
L. J. Oauvin, that the company were indebted to
Messrs. Anderson & M orison in the sum of £200,
being the amount of a judgment, together with
taxed costs on same, and if this amount were paid
the other creditors of the company would be
seriously prejudiced. Efforts had been made to
effect a compromise with Messrs. Anderson <fc
Murison, but they had failed. In consequence of
this a resolution had been passed that the oem-
pany should go into liquidation.
At this stage of the proceedings Mr. Webber
moved, on behalf of Messrs. Anderson & Murison,
for an order making absolute the rule nisi restrain-
ing the official liquidators of the Cape of Good
Hope Bank from paying out to the Omaruru Gold-
mining Company, or to any person other than the
Sheriff, any dividend or funds awarded to the com-
pany, in order 'that such funds might be applied in
satisfaction of a judgment obtained by the
applicants.
The Chief Justice remarked that if the rule
were made absolute that would not give the appli-
cants priority after the company had gone into
liquidation. No order would be made on the latter
application, but on analogy to proceedings in in-
solvency the applicants would get their ooste.
The Court granted the first application
and appointed Mr. B. R Syfret official
liquidator, at the same time conferring upon him
the powers given by the 16th section of the Act.
The liquidator to find security to the satisf action
of the Master in the sum of £500.
BEOINA V. LOGAN.
Railway Restaurant licence — Act 44 of 1885,
section 5 — Contravention — Conviction —
Appeal.
Sir Thomas Upington, Q.C., and Mr. Schreiner
appeared for the appellant, Mr. J. D. Lagan ; and
the Attorney-General (Mr. Innes, Q.C.) appeared
for the Crown.
This was an appeal from a decision of the High
Court at Kimberley, confirming a conviction of the
appellant upon a oharge of contravening section 6
of Act 44 of 1885, in that he did on Sunday, the
14th December, 1890, at Kimberley, sell liquor to
one Wallis, a person to whom he was not by his
licence authorised to sell. The record in the case
having been read, and also the reasons of the
learned judge in the Court below for his judg-
ment,
Sir T. Upington said that it would be found that
a good deal would turn upon the form of the
licence which was issued to the appellant, and he
would state that the licence was one which allowed
the appellant to sell liquor in any quantity at the
railway-station, on any day, within a reasonable
120
time before and after the arrival or departure of
trains. It was a licence which differed
in form from the ordinary licence
issued to retailers under the Act of 1883,
in which it was rot specifically mentioned.
After reading the Act, counsel went on to state
that the licence was issued upon a certificate
given by the Commissioner of Public Works, and
that it was specially made out to allow the holder
to sell to persons within a reasonable time, an
hour before or after the arrival or departure of
trains at the station. That was the difference
between a licence of this sort and a licence
issued in the ordinary manner. There was a
distinction between the ordinary bona-Jide
traveller, who could obtain liquor at any
time, and a person arriving at or depart-
ing from a railway-station, who could not
be interfered with by any condition imposed by
the Commissioner of Crown Lands or anyone else.
He contended that the licence which granted per-
mission to sell liquor within a reasonable time before
or after the arrival or departure of trains, gave the
holder the right to sell to any person within that
period, not travellers only, but also their
friends. To the traveller himself liquor could be
supplied from morning until night, but he
submitted that the persons accompanying
him to the station could also be
entertained within common-sense limits. With
all respect to the learned Judge, it struck
him that his lordship's argument was unsound,
because had this been an ordinary retail licence,
as his lordship regarded it, the holder could not
have sold on Sunday at all, because ordinary
Sunday privileges were abolished.
Mr. Schreiner followed on the same side, and
quoted the case of '* The Queen v. Dam " (3
Juta, p. 63). He contended that in the present
licence there was absolutely no limitation as to
persons, though there was limitation as to time.
If the decision were upheld the Court must come
to the conclusion that the appellant could sell to
one class of persons on week-days but was debarred
from selling to the same class on Sundays. He
submitted that no case had been made out against
the appellant.
The Chief Justice, without calling upon the
Attorney-General, gave judgment. His lordship
said that but for the provisions of the 79th section
of Act 28 of 1883, there could have been no doubt
that the appellant was not entitled, by virtue of
his retail restaurant lioenoe, to sell liquor at all on
Sundays. The licence granted on the certificate of
the Comisaioner of Crown Lands must be
read by the light of the Act which allowed its
issue. They could not assume that the Commis-
sioner intended giving to the licence-holder greater
rights then the Act allowed him to do, or that the
Distributor of Stamps intended to exceed his
duties. Therefore, in his opinion, the words "on
any day " meant any day allowed by the Act.
From the licence itself it was quite clear that it
was a retail licence. The permission to sell
within a reasonable time before or after the
arrival or departure of trains must be read by the
lights of the previous sections of the Act, and in
his opinion :that portion of the sub-section
which prevented the sale of liquor on
Sundays was not intended to be repealed by
the 17th section, and that being so the
railway licence-holder would be justified in selling
on Sunday. Coming to the 79th section, the second
sub-section said that nothing should preclude the
sale at any railway-station of liquor to persona
arriving at, or departing from, such station by rail-
way, and the effect of that provision was to
authorise railway lioence- holders to sell to persona
actually travelling on Sundays. Whilst
for the rest of the week they might sell to anyone
within a reasonable time before or after the
arrival or departure of trains, on Sundays they
might only sell to persons actually travelling.
That being so it was clear that the judgment was
correct, but Mr. Schreiner had raised a technical
point, and "relied upon the case of " Dam and the
Queen." He said that the appellant could not be
proceeded against because he had not strictly
broken the provisions of the section under which
he was proceeded against. It appeared to him,
however, that the present appellant was charged
under the correct clause. He was charged with
selling to a person to whom he was not authorised
to sell by his licence, and, reading the licence by
the light of the Act. he was only authorised to
sell to persons actually travelling on Sundays. He
sold to persons who were not travelling, and there-
fore he was properly charged. The appeal must
be dismissed.
Their lordships conourred.
[Attorneys for the appellant Messrs. Scanlan <fc
Syfret, for the Crown Messrs. Beid A Nephew.]
REHABILITATIONS.
On motions from the Bar, the rehabilitation of
the following insolvents was granted : Benjamin
Israel Nowitz, James Lamb, Marthinus Lambertus
Vogelgezang, Marthinus Edward Johannes Bezuid-
enhoud, and Christian Loedolff.
GENERAL MOTIONS.
PETITION OF MICHAEL C. J. VAN BENSBURO
AND OTHERS.
Mr. Joubert moved for authority to the Regis-
trar of Deeds to correct certain errors in deeds of
transfer relating to the farm Dassen Klip, situated
in the division of Swellendam.
m
The Court granted a rule nisi (returnable on the
last day of term) calling upon all persons inter-
ested to show cause why the errors specified in the
petition should not be rectified by the Registrar of
Deeds.
PETITION OF PHILIDA 8TOPPEL8.
Mr. Graham, en behalf of the petitioner, applied
for leave to sue in forma pauperis in an action
absut to be instituted by her against her husband
for divorce by reason of his adultery.
Referred to counsel for his certificate.
PETITION OF ELIZABETH AT MORE.
Landed property settled by ante-nuptial
contract — Sale — New investment.
On the motion of Mr. Molteno, authority was
given to sell a certain piece of land known as
Bloemf ontein, situated in the district of Kokstad,
settled upon the petitioner by ante-nuptial contract,
in order to invest the proceeds in more convenient
security.
THE GAPE OF GOOD HOPE BANE, (IN
LIQUIDATION.)
Mr. Schrexner presented for the sanction of the
Court certain compromises proposed to be effected
by the official liquidators with shareholders and
debtors ef the bank.
Order granted.
SUPREME COURT.
WEDNESDAY, MAY 27.
[Before the Chief Justice (Sir J. H. DB
Villiebs), Mr. Justice' SMITH, and Mr.
Justice Buchanan].
TON BELOW V. TIENGO.— DUNCAN V. TIBNGO.
In this matter, which was betore the Court on
Thursday last, Mr. Sohreiner, on behalf of the
applicants, moved to make absolute the rule nisi
calling upon the respondent to show cause why
certain postal drafts, to the value of £8C0 and
upwards, sheuld not be attached pending the
hearing of an action for debt about to be instituted
against the respondent.
Sir T. Upington, Q.C., who appeared for Mrs.
Tiengo, drew the attention of the Court to the
fact that the documents whioh had been attached
R
were not postal drafts but merely receipts, and
remarked that unnecessary coats had been in-
curred by attaching worthless pieces of paper
Counsel also commented upon the fact that, before
the attachment, no application had been made to
Mrs. Tiengo for the documents in question, and
observed that had Buch an application been made
considerable expense might have been prevented.
Mr. Schreiner contended that the documents
which had been attached were the vouchers upon
whioh payment would be made, and that they
were the nearest approach to the postal drafts.
Counsel further observed that unless a settlement
were arrived at he might have to ask the Court to
grant an order calling upon the Postmaster-
General to stop payment in England or in Italy,
in whichever country the drafts were made
payable.
The Chief Justice, in giving judgment, remarked
that the application was practically for an attach-
ment ad/undandamjurisdictionem. In the absence
of any explanation from the respondent the rule
nisi would be made absolute. Costs to be costs in
the cause.
SHAEOFSOO Y. VAN NOOBD6N
Pauper— 125 Rule of Court— The Court
refused to make absolute a rule nisi
admitting an applicant to sue in forma
pauperis where from the surrounding
circumstances it appeared probable that
the applicant had or could obtain funds
sufficient to proceed with his action in the
ordinary course.
Mr. Searle appeared for the applicant, and Mr.
Juta for the respondent.
This was an application to make absolute the
rule niit admitting applicant to sue in forma
pauperis in an action about to be instituted by him
for a declaration of rights in certain partnership
matters between the parties.
Mr. Juta read an affidavit sworn to by the re-
spondent, from whioh it appeared that the appli-
cant was a cigarette-maker by trade, and that he
could easily earn 10s. a day in Cape Town as there
was a demand for this kind of skilled labour, and
that under the circumstances the applioant ought
to be able to proceed with his action in the ordinary
way.
Mr. Searle having read an answering affidavit by
applicant, oontended that the test in cases of this
kind was not what an applicant might be worth in
the future, but was his present position such as to
entitle him to ask the Court to be permitted to buc
in forma pauperis. Counsel referred to the case
of Behrens v. Berg (Buch. 1877, p. 188), and drew
122
the attention of the Court to the fact that Van
SToorden in his affidavit had not denied the in-
ability of the applicant to pay the coats of the case.
The Chief Justice, in giving judgment, re-
marked that under the 125th rule of Court pro-
vision was made for the bringing of actions by
paupers upon notice been given to the opposite
side. In cases of this kind it was, however, im-
possible to lay down any hard and fast rule ; each
case must be decided on its merits, and on the sur-
rounding eircumstanoes. In the present case he
was net satisfied that the applicant was a pauper,
and that be would not be able to find funds to
bring his action. The rule would be discharged,
but no order would be made as to coats.
Mr. Justice Smith remarked that aotions of this
kind, tending as they might to promote groundless
litigation,, ought not to be enoouraged.
Mr. Justice Buchanan : In this case no injus-
tice can be done by refusing the application.
WHBELEB Y. WHEELEB.
On the motion of Mr. Molteno, the Court made
absolute the rule nisi admitting the applicant to
sue in forma pauperis in an action about to be
instituted by him against his wife for malicious
desertion and adultery.
ABRAHAMSE V. ABBAHAMSE.
On the application of Mr. McLachlan, the Court
made absolute the rule nisi admitting the applicant
to sue in forma pauperis in an action to be in-
stituted by him against his wife for malicious
desertion and adultery.
THE UNIOH BANK (IN LIQUIDATION) IN BE
SIB T. BGANLBN'S COMPBOMI8E.
Mr. Sohreiner presented for the sanction of the
Court a certain compromise proposed to be effected
by the official liquidators of the bank and Sir T. C.
Scanlen. The compromise in question was an offer
to pay 4s. in the £.
Mr. Juta, on behalf of some shareholders of the
bank, opposed the application.
The Court refused to sanction the compromise,
with costs.
THE D.B. CHURCH V. THE MA8TEB AND THE
SOUTH APBICAN ASSOCIATION.
Will — Mutual — Codicils — Construction —
Creation of poor fund for benefit of needy
relations — Administration —Special Case.
Mr. Sohreiner appeared for the Consistory of the
D,R. Ohuroh ; Sir T. TJpington, Q.O., and Mr.
Giddy for the Master ; and Mr. Juta for the B.A.
Association.
This was a special oase set down for the hearing
of the Court, the plaintiffs being the Consistory of
the D.R. Church, Cape Town, and the de-
fendants, the Master of the Supreme Court and
the South African Association. The main facts of
the caae are as follows : On the 18th March, 1794,
Johannes Henock Neethling and his wife Anna
Catherine Smuts, married in community
of property, executed a mutual will
by which each appointed the other and the
issue of their marriage joint heirs of the first
dying of them, the survivor being appointed the
executor of the first dying. On the 17th April,
1886, the testators executed a codicil, by which
they provided that the amount of certain debts
due to them by their brothers and sisters respec-
tively, and the children of such brothers and sisters
in the firBt degree, should, after the death of both
of them, constitute a poor fund for the benefit of
their needy relatives in the degrees above men-
tioned, the revenues of which fund should be dis-
tributed by their executors with the advice of the
Consistory or Kerkeraad, it being also provided by
the said oodicil that the further disposition
of the capital and revenues of the said funds
should be left to the said Johannes Henock Neeth-
ling, the executrix declaring herself satisfied with
such provision as he should make in the premises.
On the 21st April, 1886, the said J. H. Neethling
executed an instrument by which, inter alia, he
provided as follows with respect to the said fund :
(a) That the amount of the aforesaid debts should
constitute a poor fund for the families of Neeth-
ling and Smuts, from which fund the trustees
thereof should have the power to grant pecuniary ,
assistance to any of his or his wife's relations,
being descendants of his or her father, and
being deserving members of the said families,
at the discretion of the trustees and executors,
and after consultation by them with the Vestry or
Consistory of the Dutch Reformed Church, Cape
Town. (6) Provided for the rendering of yearly
accounts to the Consistory, (c) That for the
trouble of the examination and control of the ao-
oounts and fund, and for acting as arbitrators, with
final power of division and judgment in case of
doubt or question between applicants for relief,
and trustees or executors, or the administrators of
the said fund, a Bum of 200 rix-dollars (or £16
sterling) should be paid annually to the said con-
sistory for the benefit of their poor fund, (d)
That the South African Association should
be the executors and administrators of
the said fund. On the 27th April, 1886, the
testators jointly made a further codicil by
which it was provided, inter alia : That so long as
six joint heirs in the interest should survive, the
heir in the capital should leave the oapital under
128
the control of the testators' executors and adminis-
trators. That when the number of heirs should
be reduced to six, the right of survivorship among
them should cease, and the shares of the deceased
should devolve upon the heir in the capital, and
that one-half of what should come to him, over
sod above his share of inheritance in the interest,
should be employed by him for the support of the
most needy of the grandohildren of either of
testators' parents bearing the name of Neeth-
ling or Smuts. That should the trustees,
executors, or the heir differ in their cal-
culations, the difference should be settled by
arbitration or be submitted by motion to a judge.
Lastly, that in case of difference the said Con-
sistory or Kerkeraad should be arbitrators to settle
such difference de piano without appeal, and should
receive yearly for their trouble, for the benefit of
their poor fund, the sum of 200 rix-dollars (£15),
in the same manner as described in the instrument
of the 21st April, 1836, on account of the testators'
poor fund. The testator died in 1838 and his
wife in 1850. The South African Association,
after the death of the testatrix, became possessed
of the fund constituted by the codicil of the
17th April, 1836, and by the instrument of the 21st
April, 1836, and of the capital fund constituted by
the codicil of the 27th April, 1836, and adminis-
tered the same until 1872 as two separate and
distinct funds, paying to the plaintiffs annually
the sum of £15 in respect of each. In the year
1872 the South African Association paid both the
funds into the Guardians' Fund, and since that
time the Master has refused to recognise the right
of the plaintiffs to more than one annual payment
of £15, and has only paid them that sum yearly.
Mr. Schreiner, on behalf of the plaintiffs, con-
tended that the codicil of the 17th April, 1836, and
the instrument of the 21st April, 1836, and the
codicil of the 27th April, 1886, created twe
separate funds, and that the plaintiffs were entitled
to an annual payment of £15 in respect of each,
besides arrears since the year 1872, when the
funds were paid into the Guardians' Fund.
Mr. Juta, on behalf of the South African
Association, submitted that the association should
not have been made a party to the action, inas-
much as they had paid over the funds in question
to the Master, and had nothing further to do with
the matter.
Sir. T. Upington, for the Master, urged that the
fond intended to be created by the codicil of the
17th April, 1836, and by the instrument of the
21st April, 1836, was merged in the fund created
by the codicil of the 27th April, 1836, and that the
plaintiffs were only entitled to one annual payment
of £15 in respect thereof.
Cwadwvult.
P*tea (May 28).
The Chief Justice asked Mr. Schreiner if he
still contended that it was the duty of the South
African Association to receive and administer the
funds?
Mr. Schreiner said that he was quite willing te
leave the matter in the hands of the Court.
Mr. Juta informed the Court that the first
fund amounted to £8,925, and the second to
£18,534, making a total of £17,459.
The Chief Justice delivered judgment. He said
that they had found that two separate funds had
been created by the instrument of the 2 1 st April and
by the codicil of the 27th April. These funds had
been paid to the Consistory of the Dutch Reformed
Church for a very considerable period, and the Court
ought not now to disturb dispositions whioh had
been so long in force. To the first of these funds,
that constituted by the instrument ef the 21st
April, the plaintiffs were clearly entitled. As to
the second fund, he was of opinion that the
plaintiffs were only entitled te it when they had an
opportunity ef performing some duties in connec-
tion with it. He was informed that there were
only at present five heirs, so that the duties
of the Consistory would now begin, and for
the future they would be entitled to the second
annual payment of £16. The plaintiffs were not
entitled to the arrears from 1872. Costs to oeme
out of the estate, and to be paid out of the two
funds in proportion to their respective amounts.
[Attorneys for the plaintiffs Messrs. van Zyl &
Buissinne, for the Master Messrs. Reid & Nephew,
for the S. A. Association Messrs. Wessels and
Standen.]
SUPREME COURT.
THURSDAY, MAY 28.
[Before the Chief Justice (Sir J. H. DE
VILLIERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
WATSON'S EXECUTORS V. BBODBICK.
On the motion of Mr. Graham, provisional
sentence was granted on a mortgage bond for
£200, with interest from 21st March, 1890 ; pre
perty deolared executable.
HARRIS Y. BEHM.
On the application of Mr. Webber, provi-
sional sentence was granted on a mortgage bond
for £260.
124
PRINCE, VINTCBNT AND CO. V. LIZAMOBE.
On the motion of Mr. Searle, the Court granted
a final order for sequestration of defendant's
estate.— The provisional order was granted on the
21st April last.
EXECUTORS ESTATE OF VINK V. UY8.
On the application of Mr. Maskew, this matter
was ordered to stand over till Thursday next, as a
settlement is likely to be arrived at.
VON BELOW V. TIENGOw— DUNCAN V. TIENOO.
In these two matters Mr. Sohreiner moved for
confirmation of the writ of arrest.
The defendant, who appeared in person, acknow-
ledged both the debts, and judgment was given
against him with costs.
ASSIGNEES ESTATE OF MCNAUGHTON V. LOUW.
On the motion of Mr. Webber, provisional sen-
tence was granted on an acknowledgment of debt
for £130.
REHABILITATIONS.
On motion from the Bar, the rehabilitation of
the following insolvents was granted : J. L. Eras-
mus, B. J. de Vaal, H. J. Adkins, F. P. J. van
Zyl, and Gideon Beukes.
GENERAL MOTIONS.
IN THE ESTATE OF THE LATE HERMINA M.
OVERBEEK.
Maintenance — Application for funds in pos-
session of Master by brother of person
entitled — Locus standi of Applicant —
Power of Attorney — Rule nisi.
Mr. Juta presented the petition of Mr. John
Marquard praying for authority to draw towards
the maintenance of the mother of the deceased a
sum of money (£200) awarded by the executors to
the parents. The petitioner was Mrs. Overbeek's
brother, and the reason stated for the application
not being in Mrs. Overbeek's name was the
delicate state of that lady's health. It appeared
from affidavit that Mr. Overbeek deserted his wife
some years ago, and had not been heard of since
1885, when he was in Melbourne, but his present
whereabouts was unknown.
The Chief Justice remarked that the present
applicant had really no locus standi, and that a
preoedent of this kind could not be established.
JCr. Juta observed that any reference either to
her husband or to business matters had the effect
of greatly disturbing Mrs. Overbeek's mind, and
under these circumstances it was considered
prudent not to ask her to join in the application.
Mr. Justice Smith suggested Mr. Marquard's
getting a power of attorney from his sister to act
for her in the matter, and that the particulars need
not be gone inte in view of the state of her health.
The Court granted a rule nisi calling upon the
husband to show cause, on the 1st August next,
why one-half of the fund in question should not be
paid to applicant for the purposes set forth in the
petition, the Master to pay Mr. Marquard £50 on
security being given, and on production of Mrs.
Overbeek's power of attorney. Publication of the
rule to be made once in the Melbourne Argus,
IN BE MART ARTHUR.
Mr. Searle presented a petition from the Very
Rev. the Dean of Cape Town, praying for the
appointment of a curator ad litem in proceedings
about to be instituted by the Committee of Man-
agement of St. George's Orphanage, to have Miss
Arthur declared of unsound mind and incapable
of looking after her person or property.
The Court after the production of a certificate
from Dr. Falkiner, to the effect that Miss Arthur
was of unsound mind and incapable of looking after
her person and property, granted a rule nisi, re-
turnable on Wednesday next, calling upon Miss
Arthur to show cause why she should not be
declared of unsound mind, a copy of the rule to be
served personally on the alleged lunatic as well as
on, Mr. Molteno whom the Court appointed curator
ad litem.
IN THE ESTATE OF THE LATE 8AMODIEN.
On the application of Mr. Graham, the Court
granted a rule nwt, returnable on the last day of
term, calling upon all persons interested to show
cause why a oertain mortgage bond, passed by the
deceased in favour of one George Apsey, on 26th
July, 1842, hypothecating a lot of ground on the
Wynberg Flats, shall not be cancelled by the
Registrar of Deeds.
MILLER V. THE RICHMOND LICENSING COURT.
In this matter Mr. Sohreiner (for Sir T. U ping-
ton, Q.C.) applied for postponement for a week in
consequence of oertain answering affidavits having
been sent down on paper not suitable for filing.
Mr. Searle, for the appellant, said he would not
oppose the postponement if a promise were given
that the matter should come on for hearing next
week, as his clients were anxious that the case should
be disposed of as soon as possible.
The matter was ordered to stand over until next
week,
125
KEL 1ND OTHERS V. NEL*8 EXECUTRIX.
Will — Mutual — Fiduciary and Fidei-com-
missary heirs — Prohibition to alienate —
Construction — Special Case.
Mr. Juta appeared for the plaintiffs, and Mr.
Bearle for the defendant.
This was a special case, which came on for argu-
ment The plaintiffs were the grandchildren of the
late Gabriel Nel, and the defendant Franoina
Elizabeth Nel, in her capacity as executrix dative
to the estate of the late Gabriel Nel. The late
Mr. Gabriel Nel and his wife, to whom he was
married in community of property, made a mutual
will, dated 22nd Hay, 1869, by which, inter alia,
they bequeathed their farm Strydpoort to their
two sons, Gabriel and Andries Jacobus Petrus
Nel (the fathers of the plaintiffs), which farm
"was to become the property of their said
children ** after the death of the testators, under
the express limitation, however, that the said
heirs should not have the right to sell their respec-
tive shares in the said farm, or to alienate it in
any other manner, but that the same should
devolve upon and pass over to their children and
their descendants as fidei-commissary inheritances.
The testators died without having in any way re-
voked or altered the said will.
Mr. Juta contended that the farm Strydpoort
devolved, upon the death of the testators, in equal
shares upon the sons as fiduciary heirs, and that
upon the death of, or voluntary surrender of his
fiduciary interest in favour of his children by
either of the said sons, his half-share devolved
absolutely upon his children.
Mr. Searle, for the executrix, argued that the
will imposed a fidei commisswn in respect of the
property, and that the same extended as far as, and
included, the fourth generation reckoned from the
plaintiffs ; and that they were consequently not en-
titled to deal with the property in free and absolute
ownership, but that the property upon their
death ought to devolve upon their children,
to be by such children held for and
on behalf of their children and grand-
children according to the terms of the will.
With regard to the fidei commissum extending to
the fourth generation, where a perpetual entail
had not been created, counsel referred to the
following authorities : Voet (36, 1, 83), Van
Leeuwen, Centura Forensis (Pars. 1 , Lib. 3, oap. 7,
Tit 14), Sande (4, 5, 4), and Groenewegen, 159
Nov.
The Chief Justice, in giving judgment, remarked
that at the outset he was rather disposed to favour
the defendant's contention. Since, however, he
had heard the entire argument, and had looked up
be authorities, ha was clearly of opinion that the
plaintiffs ought to succeed. His Lordship read a
passage from Grotius (2, 20, 11) bearing on the
subject, and gave judgment for the plaintiffs, costs
to come out of the estate.
Their lordships concurred.
[Attorneys for the plaintiffs Gus Trollip, for the
defendant J. W. Saner.]
BROWN AND BATE (IN HIS CAPACITY AS
TRUSTEE) V. GREEN.
Insolvency — Ordinance 6 of 1843, sections 48
and 49— Leases —Act 19 of 1864— Cession
— Locus standi of Insolvent — Exception —
Amendment of Declaration.
Sir T. Upington, Q.C., appeared for the plaintiffs,
and Mr. Schreiner for the defendant.
This case came on for argument on the following
exception: "That the declaration discloses no
cause of action, because on the sequestration of
plaintiff's estate In 1884 all his rights vested in his
trustee in insolvency." The facts of the case are
as follows : The first-named plaintiff is a farmer
residing at Lowestoffe, in the district of Cathcart,
and the second-named plaintiff is the former's
trustee in insolvency, the defendant being a
general dealer residing in the division of
Aliwal North. During the years 1871 and
1872 Brown became, and is still, lessee for
twenty-one years, under the previsions of Act 19 of
1864, of the farms Ellerslie and Strath eyre, in the
division of Cathcart. On the 25th May, 1882,
Brown oeded and made over to the defendant all
his right, title, and interest in the said leases as
collateral security for the repayment of a debt due
by him to the defendant, and the latter by a docu-
ment dated 25th May, 1882, undertook to re-cede or
re-transfer to him (Brown) the said leases, or to
give him power to sell the same on his paying in
full the amount of the debt with interest. In the
year 1884 Brown surrendered his estate, and Bate
was appointed, and is still, this trustee in
insolvency. On the 12th December, 1886, a
decree was made confirming the account
and plan of distribution in the said estate.
The declaration alleged that on the 19th June,
1885, the plaintiffs tendered, and offered to pay, to
the defendant the amount of the said debt, with
interest up to date, whereupon it became, and was,
the duty of the defendant to re-cede and' re-transfer
the paid leases to the plaintiff, or to his co-plaintiff,
the trustee of his insolvent estate, for and on
behalf of the creditors of the estate and the plain-
tiff. The defendant then claimed, and still
claims, to retain the said leases for his own bene-r
126
fit, to the damage of the creditors of the estate,
who would be paid in full, and of the plaintiff,
who would be entitled to a surplus after such
payment in full in oase the defendant had not
violated his undertaking and agreement. The
said leases are still in full force and effect, and
form an asset in the said estate, and their
force and validity are fully recognised by the
Colonial Government, who are the lessors on behalf
of the Grown, and who have not determined the
same in favour of the defendant or otherwise, but
have agreed to their continuance in full force in
favour of those beneficially interested in them, in-
cluding the plaintiff*, who have also fully recog-
nised such force and validity. The plaintiff prays :
(a) That the said defendant be adjudged to re-
cede or re-transfer the said leases to the plaintiff or
to his co-plaintiff, the said trustee, for the benefit
of the creditors of the said insolvent estate and of
the plaintiff, upon payment of the lawful
amount of debt and interest as afore-
said, as the plaintiffs hereby tender to do.
(ft) That the said defendant be adjudged to pay
the first-named plaintiff £1,000, as and for damages
by reason of his refusal to re-cede or re-transfer the
said leases as aforesaid, (c) That the plaintiffs
may have suoh further or other relief as may
seem meet, with costs of suit against the said
defendant.
Mr. Sohreiner, in support of the exception, con-
tended that the first-named plaintiff (the insol-
vent) had no Iochs standi, as under the 48th section
of Ordinance 6 of 1 843 all insolvent's estate and
rights vested in his trustee, except personal
rights as provided for in section 49. Counsel, in
his argument, referred to the following cases :
11 Pratt v. Pittman " (4 Juta, 189) ; " Du Plessis
v. Du Plessis'B Trustee " (5 Juta, 220) ; " Coetzee
v. Wentzell " (4 Buch., B.D.C., p. 2).
Sir T. Upington submitted that both in the
interests of the creditors of (he estate and of his
own the first-named plaintiff had a perfect right to
join with his trustee as a plaintiff in the action.
With regard to the second part of the prayer, he
was prepared to substitute the name of the
trustee for that of the first-named plaintiff.
The Chief Justice, in giving judgment, said that
if the insolvent only had sued, the exception would
have been upheld, but the trustee was the real
plaintiff, and Brown was merely nominally
joined as a plaintiff. The exception might have
been disposed of at the hearing of the case.
No order made on the exception. Declaration
allowed to be amended by substituting the Trustee's
name for that of first-named plaintiff in section (ft)
of prayer. Costs to be costs in the cause.
[Attorneys for plaintiffs Messrs. Fairbridge &
Arderne, for defendant Messrs. Van Zyl &
JJuissinne.]
SUPREME COURT.
FRIDAY, MAT 29.
[ Before the Chief Justice (Sir J. H. DB VILLIER8),
Mr. Justice Smith, and Mr. Justice
Buchanan.]
begin a v. fredericks and muhlbb.
Mr. Justice Smith remarked that these two oases
had come before him on review from a sentence
passed upon the prisoners by the Assistant Resident
Magistrate of Clanwilliam. The prisoners were
charged with the crime of theft, and the oases had
been remitted by the Attorney-General to the
Magistrate, who passed a sentence of two years'
imprisonment with hard labour on each of the
prisoners. The sentence must be altered to that
of one year's imprisonment with hard labour, as
the Magistrate had no power to inflict a heavier
punishment.
THE WORCESTER MUNICIPALITY V. THE
COLONIAL GOVERNMENT.
Contract — Specific performance — " Remain-
ing extent " — Construction.
Mr. Sohreiner and Mr. Graham appeared for the
plaintiffs, and Sir T. Upington, Q.C., and Mr.
Giddy for the defendants. — This was an action for
specific performance of a written contract alleged
to have been entered into between the Colonial
Government and the Worcester Municipality. The
facts of the case are briefly these : The Colonial
Government are the proprietors by purchase of the
remaining extent of certain two farms Roodeval
and Langerug, in the division of Worcester, on
other portions of which the erven of the Muni-
cipality are laid out. In February, 1886, the
Commissioners of the Municipality agreed with
the Commissioner of Crown Lands and Public
Works, as representing the Colonial Government,
to buy the remaining extent of the farms above
mentioned for £671 12s., and parliamentary
sanction was obtained for suoh sale.
The defence set up by the Government was that
the " remaining extent "did not include the Drostdy,
or certain native locations and plantations
situated on the said farms, and alleged that these
buildings and portions of the farms were expressly
excluded in the survey that had been made by Mr.
Watson, and that the Commissioners had notice of
such exclusion. The defendants also tendered the
remaining portions of the farms, some 4,000
morgen in extent, with the exclusions above re-
ferred fc>.
iii
Mr. Schreiner having read the correspondence,
nid that it disclosed all the terms of the contract,
and that he did not think it neoesiary to call any
witnesses.
The Court having expressed a wish to hear the
plaintiffs' witnesses, Mr. Schreiner called Mr.
Meiring (chairman of the Worcester Municipality),
who stated that he had been a Commissioner on
and off since 1854. He considered the contract
as contained in the correspondence which had
passed between the Commissioner of Crown Lands
and the Municipality inoluded the Drostdy, as
well as the plantations and locations ; if he had
not thought so he would not have been a party to
the sale, as the Municipality had full commonage
right over the remainder of the farms, and no
advantage could be gained by purchasing what
they already had the use of. He valued
the Drostdy at from £2,000 to £2,500.
He knew that the Municipality were making a good
bargain. He had no recollection of Watson's
having told him that certain portions of the farms
were to be excluded.
Cross-examined by Sir T. Upington : There was
a fence around the Drostdy grounds, and enclosing
the plantations. He did not remember Mr. Wat-
son*s having made any reference to the exclusion
of these places from his survey. He was net aware
that the Municipality held any titles.
Re-examined by Mr. Schreiner: The oommonage
which the Municipality was anxious to acquire
was beyond the boundary of the farms in ques-
tion.
In answer to the Chief Justice, witness stated
that he did not think the Government knew that
they were selling the Drostdy.
Mr. Frederick Lindenberg, an attorney-at-law
and secretary to the Worcester Municipality,
examined by Mr. Schreiner, gave particulars as to
the calling of a meeting of ratepayers to consider
the offer ef the Government. In answer to the
Court, witness said that the Drostdy was the
residence of the Magistrate, and that the lower
part of the building was used as Government
offices. He had some doubts as to whether the
latter building as well as the gaol had been
included in the sale.
Mr. W. A. Nel corroborated the evidence ef the
last two witnesses.
Mr. T. K. Watson, a Government surveyor, stated
that he had surveyed the farms in question, acting
under instructions received from the Surveyor-
General. He pointed out to the Commissioners
appointed to inspect the beacons that a deviation
would be made at the Drostdy so as te exclude
that building as well as the gaoJ.
The examination of the Surveyor-General (Mr.
Marquard) concluded the evidence for the defence.
Mr. Schreiner, addressing the Court, said that
Bo matter how hard this case might appear to be,
his clients stood upon their legal rights and were
entitled to specifio performance of the contract.
The defence set up by the Government was
virtually laesio enormis, which had been abolished
by statute, and in the absence of fraud, which had
not been pleaded, the plaintiffs were entitled to
have the contract construed as it stood, without
the introduction of any matter which might modify
or vary that contract. No injustice could be done
or hardship occasioned, as it was merely a trans-
ferring of property from the central to the local
Government.
The Court, without calling upon Sir T. Uping-
ton, delivered judgment.
The Chief Justice said that this was an
action for specific performance of a contract
of sale entered inte between the Colonial
Government, through the Commissioner of Crown
Lands and Fublio Works, and the Worcester
Municipality. The Government admitted that a
contract was entered into to sell the remaining
portions of the farms Roodeval and Langerug, and
in fulfilment ef that contract offered the plaintiffs
a very considerable quantity ef land, amounting to
about 4,000 morgen. The Municipality, however,
refused to accept this offer, because the
Drostdy and certain native locations and
plantations situated on the farms were exoluded.
If different issues had been raised in the pleadings
he (the Chief Justice) would have had much to
say on the matter, but as the case stood, they had
simply to deal with matters of hard law. It was
oontended on behalf of the plaintiffs that as por-
tions of the farms had been sold for £2,828 8s., and
the property had cost the Government £3,600,
they would be satisfied if they got the difference
between these two amounts, namely, £671 12s. for
the remaining portions. In proof of this, the
letter of the 15th January, 1885, was relied upon.
It was difficult to oonstrue" remaining extent," but
under all the circumstances of the case he (the
Chief Justice) was of opinion that " remaining
extent" meant the land remaining after the
Government had selected those portions
which were exoluded. It was proved that
the Drostdy had always been fenced off
from the commonage, and had always been occu-
pied by the Government, but if the contention of
the plaintiffs was correct they were entitled, not
only to the Drostdy, but also to the railway-station,
as the latter formed part of the farm Roodeval.
He merely mentioned this to show how absurd
was the construction put upon the words, "re-
maining extent," by the plaintiffs. No doubt
there might be circumstances under which these
words might have a different meaning, but he
(the Chief Justice) was satisfied that the true
meaning put upon them was that oontended
for by the Government. He regretted the conduct
of the Government in this matter, whioh was not
128
BHch as one would have expected from a person
dealing with his private affairs. One would have
thought that the Government would have been
more careful in selling property belonging to the
public. The judgment of the Court would be
absolution from the instance with costs.
Mr. Justice Buohanan expressed his con-
currence, and said that he quite agieed with the
remarks which had fallen from the Chief Justice
with regard to the action of the Government in
the matter.
[Attorneys for the Worcester Municipality
Messrs. Van Zyl A Buissinne, for the Colonial
Government Messrs. Reid & Nephew.]
SUPREME COURT.
MONDAY, JUNE 1.
[Before the Chief Justice (Sir J. H. DE VlLLIERS,
Mr. Justice SMITH and Mr. Justice
Buchanan.]
groom and white v. the b ec hu an aland
exploration company, limited.
Mr. Searle and Mr. Shiel appeared for the plain-
tiffs, and Sir T. Upington, Q.C., and Mr. Schreiner
for the defendant company.
This case (the particulars of which are fully set
forth ante page 46,) came on for final hearing.
On the 17th February last the plaintiff's evidence
was heard, and the case postponed for the arrival
in Cape Town of Mr. Harman, the company's
agent in Bechuanaland.
Mr. F. E. Harman, superintendent of the com-
pany, and by profession a geological and mining
expert, examined by Sir T. Upington, stated that
he had lived in Khama' s country a little over a year.
He remembered the plaintiffs* arrival in Palapye
and the subsequent delay in proceeding on their
prospecting expedition, which was mainly due to
Mr. White's illness. He advised plaintiffs to make
for the Crocodile River, as being the only likely
place in Khama's country in which they might find
gold. They stopped, however, at a place about forty
miles from Palapye, and he was obliged to order
them away in accordance with instructions received
from Khama. They then went about fifteen mileB
further on, near the Lotsani River, and he (wit-
ness) was again obliged to order them to desist
from prospecting, as there were cattle posts in the
neighbourhood, and Khama strongly objected to
white men remaining near his people's kraals or
cattle posts. A correspondence then ensued between
plaintiffs and himself which led to nothing, and
subsequently they (plaintiffs) returned to Palapye
and sold all their effects. He saw no specimens of
quartz with plaintiffs after their return. He had
prospected all over Khama's country, and with the
exception of the Crocodile River, he had found no
indications of gold anywhere.
Cross-examined by Mr. Searle : He did not con-
sider that plaintiffs had been guilty of a breaoh of
faith in working where they did. He was of
opinion that there was no gold where plaintiffs had
been prospeoting. The company had pros-
pectors working on the Crocodile River,
but they had not found much gold,
and they had now gone to Mashonaland.
In certain seasons of the year the Crocodile was
unhealthy, but he did not know of any men having
died of fever. One man, Mr. Tregenza, did die,
but his death was due to an overdose of medicine.
Mr. Searle, on behalf of the plaintiffs, contended
that the company had violated the terms of their
contract, and that the plaintiffs were entitled to the
very moderate damages which they had claimed.
The Chief Justice, without calling upon Sir T.
Upington, recited the facts of the case, and after
referring to the correspondence and agreement,
held that there had been no breach — the judgment
of the Court being absolution from the instance,
with no order as to costs.
[Plaintiffs' Attorneys, Messrs. Van Zyl &
Buissinne; Defendants' Attorneys, Fairbridgo &
Arderne.]
[Before Mr. Justice SMITH and Mr. Justice
Buchanan.]
ASKEW V. MOLLER.
Insolvency— Ordinance 6 of 1843, section
19 — Provisional order for sequestration —
Petition unfounded, vexatious, or mali-
cious — Principal and agent — Malice —
Action for damages — Tender — Costs.
Sir T. Upington, Q.C., and Mr. Graham appeared
for the plaintiff, and Mr. Schreiner for the
defendant.
This was an action instituted by Mr. Thomas
Arthur Askew, a produce and forage dealer of
Claremont, against Mr. J. M. Moller, of Johannes-
burg, for £300, damages alleged to have been sus-
tained under the following circumstances : On the
9th January last, the defendant, through his
agent, Mr. H. P. Moller, petitioned the Court for
the sequestration of plaintiff's estate. A provi-
sional order was granted on the petition, and subse-
quently discharged on want of proof of insolvency.
129
The declaration alleged that under colour of the
provisional order the defendant, through his agent,
caused the plaintiffs business premises to be
broken into and entered, and the stock, goods, and
effects of the plaintiff to be attached and seized,
and farther caused the said premises to be closed, to
the exclusion of the plaintiff. The declaration
farther alleged that the petition upon which the
provisional order was granted was, within the
terms of Ordinance 6 of 1843, section 19, unfounded,
and vexatious or malicious, and that the acts of
the defendant, through his agent, in procuring the
said provisional order and in proceeding
thereunder, were unlawful, and were un-
founded and vexatious or malicious. The plaintiff
farther alleged that he had been injured by the
aforesaid acts of the defendant in his business and
credit, and that he had lost the profits and benefit
ef his business during the period that he had been
excluded from the same, and that he had been
damaged to the extent of £300.
The defence set up was that the provisional
order had been obtained under a misapprehension
that plaintiff was actually insolvent. Malice was
denied, and an offer of £50 and costs up to date
made, which latter was however declined.
Mr. T. A. Askew, the plaintiff, examined by Sir
T. Upington, stated that the morning after the
provisional order had been granted he found Mr.
Moller, sen., and the Master's messenger in possession
of his premises making an inventory of his stock,
hones, cartB, <fec. He remonstrated with Mr.
Moller, but the latter told him that he was going
to look after No. 1. Even since the provisional
order had been discharged, he had suffered con-
siderable loss in his business and credit ; and firms
like Messrs. W. Searle & Son and Attwell & Co.,
which formerly had given him credit, now insisted
upon cash transactions. Witness further stated
that some of his best customers had left him, and '
that he estimated the loss he had sustained at
about £244.
In cross-examination by Mr. Sohreiner, witness t
said that he had been recently offered £1,200 for '
his premises by a Mr. Myburgh.
SUPREME COURT.
TUESDAY, JUNE 2.
[Before the Chief Justice (Sir J. H. DE
VlLLIBBS, K.OM.G.), Mr. Justice SMITH,
and Mr. Justice BUCHANAN.]
ASKEW V. MOLLBE.
The further hearing of this case was resumed,
the plaintiff being represented as before by Sir T.
8
Upington, Q.C., and Mr. T. L. Graham, and the
defendant by Mr. Schreiner.
The remaining witnesses for the plaintiff having
been heard,
The Chief Justice asked whether, in cases of
this kind, a principal could be held liable for the
malicious acts of his agent' ? His lordship referred
to the English law on the subject, and quoted the
case of Limpus v. The London General Omnibus
Company (11W.R., 149, 7 L.T. <fe S., 245). In
that caae the driver of an omnibus, whilst plying
between P. and K., wilfully, and contrary to
express orders from his master, pulled across the
road in order to obstruct the plaintiff's omnibus.
In an action for negligenoe it was held that if the
act of driving across to obstruct the plaintiff's
omnibus, although a reokless driving, was never-
theless an act done in the course of the driver's
service, and to do that whioh he thought best for
the interest of his master, the master was
responsible ; that his liability depended upon
the conduct of the servant in the course of his
employment, and that the orders given to him not
to obstruct were immaterial. The Chief Justice
read the remarks ef Blackburn, J., to the follow-
ing effect : " If the jury came to the conclusion
that he (the driver) did it, not to further his
master's interest, not in the course of his employ-
ment as an omnibus driver, but from private spite,
with an object to injure his enemy — who may be
supposed to be the rival omnibus— that would be
out of the course of his employment. That saves
all possible objections."
Mr. Sohreiner, in reply to the Chief Justice, said
that the matter had been referred to in the
pleadings, and that malice had been specifically
denied. As a matter of fact the defendant was in
Johannesburg, and knew absolutely nothing about
the insolvency proceedings. In any event, it was
not for them to plead malice on the part of the
agent.
The Chief Justice asked Sir T. Upington how it
was that defendant's tender of £50 and taxed costs
had not been accepted ?
Sir T. Upington, addressing the Court, said that
£50 would be very poor compensation indeed for
the very serious injury which had been inflicted on
plaintiff's business. Both creditors and customers
had been in a great measure influenced by the
insolvency proceedings, and he (counsel) submitted
that this was a case in whioh the Court would
grant substantial damages.
The Court, without hearing witnesses for the
defence, delivered judgment. The Chief Justice
said it was much to be regretted that the plaintiff
had not accepted the very fair tender which had
been made by the defendant. Under all the cir-
cumstances of the case, he (the Chief Justice) was
of opinion that the tender was fair and reasonable,
and was about the amount the Court would have
130
given by way of damages had no tender been made.
In cases in which a reasonable tender had been
made the invariable practice of the Court was not
to give more than the amount of the tender,
even where, if no tender had been made, they
might possibly award a few pounds more.
The actual damage whioh the plaintiff had sus-
tained amounted to about £60, and under the cir-
cumstances £50 was a fair tender. Plaintiff's
business was mainly a cash one, and the insolvency
proceedings could not very materially affect him.
It was true that in certain kinds of business (a
banker's for instance), the mere fact of a seques-
tration order being granted might have the effect of
ruining a man, but the present was not such a case,
and he (the Chief Justioe) was of opinion that the
Court would not have awarded plaintiff more than
£50 or £60. Under these ciroumstances, judgment
would be given for the plaintiff for the
amount of the tender, £50, with costs up to
date of same. The costs subsequently incurred
must, however, be paid by plaintiff.
[Plaintiff's Attorneys, H. P. du Preez ; Defen-
dant's Attorneys, Messrs. Weasels & St an den].
BEGINA V. JAN PLE8SIS, BACHAEL PLESSI8 AND
SUSAN FINNES.
The Chief Justice remarked that this case had
Come before him on review. The prisoners were
charged with receiving sheep, knowing the same
to have been stolen. There was no question as to
the guilt of the male prisoner ; with regard, how-
ever, to the female prisoners, the only evidence
against them was the statement made by Plessis,
and as this statement was made on the way to the
Police-station, and not on oath, the sentence on the
female prisoners must be quashed, that on the
male prisoner would be confirmed.
OOMBBIKCK Y. MYBUBGH.
Negligence — Grass fire — Damages.
Mr. Juta and Mr. McLaohlan appeared for the
plaintiff ; and Mr. Sohreiner and Mr. Molteno for
the defendant.
This was an action for £100 damages instituted
by the plaintiff, who is the occupier of a farm
called Oude Kraal in the Cape Division, against
the defendant, a farmer living at Hout's Bay.
The declaration alleged that on the 4th February
last the defendant kindled, or caused to be kindled,
on his farm a fire, and negligently allowed the said
fire to spread and extend beyond the boundaries of
his farm down the sides of the mountains known
as the Twelve Apostles, and on to and over
plaintiff's farm Oude Kraal, and thereby
damaged the plaintiff to the amount of £100, by
reason of the destruction of timber and pasturage.
The defendant in his plea admitted that he kindled
a fire on his farm on the 4th February, but alleged
that another fire, and not the one that he had
kindled, had done the damage complained of.
Defendant further pleaded contributory negligence
on the part of the plaintiff, in allowing the fire to
spread and extend over his (plaintiff's) farm.
Upon these facts issue was joined.
Jacob Troutman, a fisherman residing at Hout's
Bay, examined by Mr. Juta, stated that he remem-
bered the fire on Wednesday, the 4th February. He
went into Wynberg in the morning, and saw the
fire on Jkyburgh's farm. The fire was extending
towards Oude Kraal. Witness did not go out to
fish next morning, as there was a strong south-east
wind blowing. He saw no other fires on the
mountain on Thursday.
Mr. De VrieB, a sodawater manufacturer, of
Cape Town, stated that he knew Oude Kraal well,
and was there during the fire. He and several
others watched the fire, which spread over the
farm very quickly owing to the strong south-east
wind which was blowing at the time. Witness
also stated that he saw the pasturage and timber
being consumed.
The plaintiff and a great number of other wit-
nesses were oalled, who were unanimous in their
opinion that the fire extended from Myburgh's
farm over to Oude Kraal.
Mr. Molteno, a Government surveyor, examined
by Mr. Schreiner, stated that he had visited the
scene of the fire, and had made a plan (produced)
of the parts of the mountain which had been burnt.
Witness was inclined to think that there had been
two fires, but where the secend had proceeded from
he could not say.
The further hearing of the case was postponed
until Friday next.
SUPREME COURT.
WEDNESDAY, JUNE 3.
[Before the Chief Justice (Sir J. H. DB
VILLIERS), Mr. Justioe SMITH, and Mr.
Justice Buchanan.
IN BE MARY ARTHUR.
De lunatico inquirendo — Act 20 of 1879 —
Illegal removal and detention of alleged
lunatic — Locus standi of plaintiffs.
Mr. Searle appeared for the Dean of Cape Town
(in his capacity as chairman ef the Committee of
131
Management of St. George's Orphanage) ; the
defendant being represented by Mr. Molteno, her
curator ad litem.
This was an application to make absolute the
role nhi granted on Thursday, the 28th May,
calling upon the defendant to show cause why she
should not be declared of unsound mind and in-
capable of looking after her person and property.
Mr. Molteno raised a preliminary objection as
to the locus standi of the plaintiffs, and submitted
that relatives only could come to the Court with
an application of this kind.
The Court ruled that as some at least of the
Committee of Management were joint trustees
with Mias Arthur of the property and funds of
the Orphanage, they were entitled to ask for the
appointment of a curator bonu.
Mr. Searle having read extracts from the trust
deed under which the Orphanage was constituted,
called.
Dr. Thomas Falkiner, who stated that he had
known Miss Arthur far some years. On the
2 1st of May last he saw Miss Arthur at the
Orphanage. When he entered her room he found
her sitting on a bed made on the floor, snrrounded
by a number of toilet and other requisites.
Miss Arthur would not enter into a
conversation with witness, bat made several
incoherent observations in the form of a song or
chant. She had a bell near her bed which she
rang at intervals. She was suffering from what
she described as the ** chokes," and as a remedy
drank considerable quantities of water. Subse-
quently on the same day (May 21) he received two
letters from Miss Arthur asking him to visit her,
but he did not do so. Some three or four years
ago he had seen Miss Arthur in a similar con-
dition, and he was clearly of opinion that she was
of unsound mini, and incapable of managing the
Orphanage or of taking care of her person or
property. He was one of the doctors who had
signed the certificate.
Gross-examined by Mr. Molteno : Miss Arthur
did not send for him. On the 21st May he
received two letters, one from Archdeacon
Liightfoot and the other from a local firm
of solicitors, asking him to visit her. On the for-
mer occasion to which he had referred he had
declined to sign a certificate, because he did not
want to have anything to do with Miss Arthur's
In answer to the Chief Justice, witness stated
that he could best describe Miss Arthur's symptoms
as being those of " recurrent mania."
Dr.W. C. Scholtz, Miss Arthur's regular attendant,
and who also signed the certificate for her removal,
corroborated in most of the details the evidence of
the previous witness.
By the Court: He had signed the certificate
under protest, but he had no doubt as to Miss
Arthur's insanity. He would have signed the
certificate if Miss Arthur had been a private in-
dividual with friends to look after her.
Dr. Dodds, superintendent of the Valkenberg
Asylum, said that Miss Arthur was admitted into
the institution on the 23rd May. At times she was
perfeotly rational and evinced considerable mental
activity, but at other times she suffered from great
mental excitement. When she was suffering from
the " ohokes *' she was very irritable, the slightest
sound annoyed her, and she made a peculiar noise
more resembling the bark of a dog than anything
else. Water appeared to be the only thing that
caused her relief, and of this she drank large
quantities. She interested herself in the manage-
ment of the asylum, and offered many excellent
suggestions which he (witness) wished he could
carry out. Generally, he was of opinion that Miss
Arthur's mental condition was such that she ought
not to be entrusted any longer with the manage-
ment of the Orphanage, and that she whs not
capable of looking after her person and property.
Dr. C. F. Murray stated that he had examined
the defendant some three or four years ago, and
had signed the certificate for her removal to the
Old Somerset Hospital. The symptoms she then
exhibited were very similar to those which had
been described by the previous witnesses.
Miss Harriet Smith and Miss A. L. Howard
having given evidence as to the eccentric manner
in which Miss Arthur managed the Orphanage
during her attacks of the " chokes."
Mr. Molteno called Mr. Arderne, who stated
that he had been Miss Arthur's attorney for
the last 25 years. He had never seen defen-
dant when she was suffering from the attacks
described by the medical witnesses. When-
ever he had had interviews with Miss Arthur
he never noticed anything which would lead
him to suppose that she was of unsound
mind, and during the hearing of the present case
she had suggested questions as pertinent as any
client he had ever had. He was quite willing to
act as curator bonis if the Court appointed him.
The Chief Justice asked defendant whether she
would like to make her statement in open court or
before judges in chambers.
Miss Arthur, through her counsel, expressed her
strong desire to be examined in open oourt.
After the adjournment the defendant, being
duly sworn, stated that from infancy she had
suffered from a weak heart and from nervous
attacks ; when these attacks were bad they pro-
duced a choking sensation, and were what she
called the " chokes." None of the doctors under-
stood her complaint exactly, but she was at present
writing a book on the " nerves," and when this
work appeared the nature of her malady, which
was not insanity, would be explained. She was
quite prepared to give up the management of the
132
Orphanage in favour of Miss Smith, but she
declined to relinquish control of the funds.
Mr. Molteno said thai before the Court ex-
pressed an opinion on the case, he wished to
question the legality of Miss Arthur's removal to
and detention in the Valkenberg Asylum.
Counsel referred their lordships to Act 20 of
1879, and contended that inasmuch as defendant
was not a dangerous lunatic within the terms of
the Act, the doctors and Magistrate were not
justified in signing the certificate upon which she
has been removed to the asylum
The Chief Justice, in giving judgment, said that
he entertained no doubt whatever but that at
times Miss Arthur was of unsound mind, and
during these periods was incapable of looking after
her person and property. He quite agreed with
Mr. Molteno that the defendant's removal and de-
tention in the asylum were illegal, the terms of the
Act had not been complied with, there was no
proof that Miss Arthur was a dangerous lunatic,
and were it not that Bhe had expressed a wish to
return to the Valkenberg Asylum he (the Chief
Justice) would have ordered her immediate
release. After hearing evidence and Miss Arthur's
statement, the Court were of opinion that de-
fendant was of unsound mind and incapable of
looking after her person and property. Dr. Dodds
would be appointed curator of her person, and Mr.
Arderne of her property, but the defendant would
have leave to apply at any time to have her
curators removed upon showing sufficient cause.
TKENOS V. GABLICK.
Bill of Exchange — Interdict — Attachment.
Mr. Hchreiner appeared for the plaintiff, and Mr.
Searle and Mr. Watermeyer for the defendant.
This was an action to recover £1 12 on a bill of
exchange drawn by Messrs. Johnson & Co., of
Klerksdorp, or the defendant in favour of the
plaintiff. The defendant refused to accept the
bill on presentation, or to honour it when it
became due on the 3rd November last. On the 7th
November the plaintiff obtained an interdict
restraining the defendant from paying to any one
except the (Sheriff £112 out of oertain funds at
that time alleged to be in possession of
the defendant, but belonging to Johnson & Co.
The £112 has since that date remained in posses-
sion of the Sheriff, and the plaintiff now asked for
a declaration of rights, and that the money in
question should be paid to him in satisfaction of
a judgment, for which he prayed the Court. It
appeared that previous to the granting of the
interdict above referred to, an interdict had
already been put upon the funds in defendant's
possession, in the matter of Levin v. Garlick.
(C.T.L.R., p, 25.)
The evidence of Mr. Johnson having been heard,
the Court held that when the second interdict
was granted, there were no funds capable of being
attached, and without hearing further evidence,
gave absolution from the instance with cost*,
including the costs of the interdict.
[Plaintiff's Attorneys C. C de Villiers. Defen-
dant's Attorneys Messrs. Van Zyl and Buissinne.]
SUPREME COURT.
THURSDAY, JUNE 4.
Before the Chief Justice (Sir J. H. De VILLIBRS),
Mr. Justice SMITH, and Mr. Justice
Buchanan.
PROVISIONAL ROLL.
AUBET V. THE EXECUTOR OF HAABHOFP.
Ordinance No. 104, section 33 — Administra-
tion accounts —Non-compliance with terms
of statute — Costs de bonis propriis.
Mr. Graham appeared for the plaintiff, and Mr.
Juta for the defendant.
This was an application under Ordinance No.
104, section 33, calling upon the defendant to file
his administration account and pay, de bonis
propriis, the costs of the present application.
It appeared from affidavit that the defendant
entered upon his duties on the 7th March, 1890, and
up to the present no account had been filed.
An affidavit was read from the defendant in which
he stated that at present he was detained in
Pretoria on important business, but on his return
to Kimberley, a month or two hence, he would be
quite prepared to furnish the required accounts,
and pay plaintiffs claim if the estate was selvent.
The Chief Justioe, in giving judgment, said that
no sufficient cause had been shown by the defendant
as to why he had not filed his accounts. The
Ordinance required that this should be done within
six months. The defendant would be ordered to
file his accounts within three months and to pay,
de bonis propriis, the costs of the present
application.
BATON, ROBERTSON AND CO. V. OLIVER.
On the application of Mr. Watermeyer, the final
adjudication of the defendant's estate was ordered.
The provisional order was granted on the 27th
May.
138
BTEPHAN V. LIPSKTT AND WIPE.
Promissory Note — Provisional sentence —
Arrangement entered into between maker
and payee — Holder in due course — Notice.
Mr. Juta appeared for plaintiff, and Mr. Searle
for the defendants.
This was an application for provisional sentence
on a promissory note for £261 18s. 8d., given under
the following circumstances. It appears that T.
R. Lipsett, the defendant, and his brother, Wil-
liam Lipsett, had been in partnership as general
drapers in Gape Town. William Lipsett's wife
advanced to the business the sum of £460, and
part of this amount was repaid by the firm,
the balance being the sum now sued on.
William Lipsett took a promissory note from T.
R. Lipsett and his wife for the balance, namely,
£261 18s. 8d., on the understanding (as it was
alleged) that the note was not to be put in suit
until T. R. Lipsett was in a position to meet it,
although interest was to run from the 1st March of
this year. Subsequently W. Lipsett indorsed over
the note to his wife's trustee under her ante-
nuptial contract, and the trustee, the present
plaintiff, now sued on it.
Mr Searle contended that this was not a case
for provisional sentence. The note had been
given under special conditions, one of whioh was
that payment was not to be demanded until the
first-named defendant was in a position to pay.
Counsel further contended that inasmuch as Wm.
Lipsett could not sue on the note the present
plaintiff (who was in reality William Lipsett's
wife) could be in no better position.
The Chief Justioe said that if William Lipsett
had sued on the note the Court might have refused
provisional sentence. There was no evidence, how-
ever, that either Mr. Stephan or William Lipsett's
wife was aware of the arrangement which had
been made by the brothers. Under these circum-
stances, provisional sentence would be granted
with costs.
CAREL8E V CAEEL8E.
On the application of Sir T. Upington, Q.C.,
judgment was granted in terms of consent.
REHABILITATIONS.
On motion from the Bar the rehabilitation of
the following insolvents was granted : Walter John
Carrie (deceased), release from sequestration;
Alfred Benjamin Kidwell and Jacob Johannes
Bosfouw,
GKNBRAL MOTIONS.
BEN8BUBG V. PBINB AND OTHEBS.
On the motion of Mr. Searle, the Court made
absolute the rule nisi interdicting the respondents
from molesting applicant, and from trespassing en
his property, situated in the district of Oudtshoorn
and known as part of the farm Matjes River,
pending the result of an action te compel transfer
of the land in question.
DE KLERK V. MABAIS.
Divisional Council election — Ordinance 40 of
1889, sections 18 and 269— Rates— Right
of voting — Owner and occupier.
Sir T. Upington, Q.C., appeared for the applicant,
and Mr. Juta for the respondent.
This was an application for an order setting
aside the decision of the Court of Investigation in
regard to the Divisional Council election for
Tulbagh, and declaring that applicant was elected
a member for the said Council for Ward No. 1.
Sir T. Upington said that the first point the
Court had to decide in this matter was whether,
under Act 40 of 1889, occupiers of land who had
not paid their rates were disqualified from voting.
Counsel referred to several sections of the Act, and
contended that it could not have been the intention
of the Legislature to doprive occupiers of land of
their right of voting merely because the owner,
upon whom the primary duty devolved, had not
paid the rates.
The Court, after hearing Mr. Juta, delivered
judgment.
The Chief Justice said that section 18,
sub-section (a), dearly indicated the
persons who were not entitled to vote,
and section 269 empowered every Council
in suing for the recovery of rates to proceed
against the owner or lessee, or occupier, either
separately or both of them in one and the same
action, each for the whole rate, in any oompetent
court. He was of opinion that when a person can
be sued without notioe for a certain amount, that
amount is due. It did not follow that
because the owner was primarily liable the
occupier was not legally liable. The case of a
principal and surety who had renounced the
beneficia was analogous. As the case was to be
decided on the point submitted, he was of opinion
that the application should be refused with costs.
Mr. Justice Smith referred to several sections of
the Act, and said that he was inclined to think
that the duty of paying the rates was on the
owner of the property. He would draw a distinc-
tion between this oase and that of a principal and
surety.
134
Mr. Justice Buchanan said that at fint he had
some difficulty in arriving at a decision. After,
however, having carefully considered the sections
referred to, he agreed with the construction put
upon them by the Chief Justice.
Application refused with costs.
EXECUTORS MARY QUIN V. EXECUTORS JOHN
QUIN.
Mr. Schreiner moved for the issue of a commis-
sion to take the evidence, de bene esse, of the
defendant at Johannesburg, South African
Republic.
Sir T. Upington, Q.C., opposed the motion, and
said that it was very desirable that the defendant
should be examined in court, as questions of
account would be raised involving a sum of £3,400.
The Court ordered the defendant to be present
at the trial, which was set down specially for
Tuesday, 7th July ; costs to be costs in the cause.
LAWRANCE V. WARD AND WESSEL8.— CORONEL
V. WARD AND WES8EL8.
Practice — Pleadings — Bar — Claim in recon-
vention — Security for costs — Judicatum
solvi.
As the facts in these two matters were similar
they were heard together. Mr. Juta, on behalf of
the first-named defendant, moved for an order re-
moving the notice of bar filed by the plaintiffs
against the defendant Ward, and requiring them to
furnish security to the said defendant for his claim
in reconvention.
Sir T. Upington, Q.C., and Mr. Graham ap-
peared for the plaintiffs.
It appeared that the defendant Ward was barred
from pleading on the 29th of May last.
Mr. Juta read an affidavit Bworn to by Mr. G. M.
Findlay, of the firm of Findlay & Tait, solicitors,
explaining why the pleadings bad not been filed.
The affidavit in question stated that Messrs. Find-
lay & Tait had special instructions from their
client Ward not to incur any expense until ade-
quate security had been given for defendants 1 costs
(the plaintiffs not being domiciled in the Colony),
and that they had acted on those instructions.
That security for oosts was only given and accepted
on 27th May, and that he (Mr. Findlay) contended
that Ward was entitled to eight days from that
date within which to file his plea. That on 3rd
June he tendered the defendants' plea to the
Assistant Registrar, when it was declined, notioe
barring defendant from pleading having
been filed. That the defendant Ward
claims in reconvention the sum of £176,000, and
that he has no security for any amount whioh
he might recover in reconvention, the plaintiff
having no assets within the jurisdiction. — To this
an answering affidavit from Sir T. Scanlen was
read by Mr. Graham.
Sir T. Upington, in opposing the application,
contended that the defendants had no right to lie
by until security had been given, and that it was
their duty to have demanded security. Counsel
characterised the action of the defendants as an
attempt to postpone the case till next
term well knowing that his clients'
right of purchase must be exercised
before the 30th June. Personally, he had no
objection to the bar being removed, on the under-
standing that the case was set down for trial this
term.
Mr. Juta, on the authority of "Taylor 6
Symonda v. Schunke " (C.T.L.R., p. 14), contended
that his clients were entitled to security for their
claim in reconvention.
After further argument, the Court granted an
order removing the bar, made no order as te se-
curity for the claim in reconvention, and fixed
Tuesday, 23rd June, for the trial ; costs to abide
the result.
SUPREME COURT.
FRIDAY, JUNE 6.
[Before the Chief Justice (Sir J. H. DE
VlLLlERS), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
IN BE SCHEEPERS.
On the motion of Mr. Schreiner, Mr. Jaoobus
Johannes Scheepers was admitted to practise as
an attorney of the Supreme Court, the oaths to be
taken before the Resident Magistrate of Burghers-
dorp.
IN THE INSOLVENT ESTATE OF ROBERT
OLIVER.
On the application of Mr. Waterxneyer, Mr.
William Arthur Eaton was appointed provisional
trustee in the above estate.
IN RE THE KNYSNA CONSOLIDATED GOLD-
MINING COMPANY, LIMITED.
Winding-up Act— No. 12 of 1868— Applic-
ation to be placed under operation of.
Mr. Juta presented a petition from creditors of
the above company for an order placing the com-
pany under the operation of the Winding-up Act
M
of 1868, and suggesting Mr. Charles W. Thesen as
a fit and proper person to be appointed official
liquidator.
Mr. Schreiner presented a similar petition from
three miners who had been brought out from
Kngl a n d, and whose claims against the company
amounted to over £400; the petition further
prayed that Mr. G. W. Steytler, of Knysna, should
be appointed co-liquidator with Mr. Thesen.
The Chief Justice read a letter from the English
liquidator asking that extreme measures should
not be taken, as there was a possibility of refloat-
ing the company if time were given.
The Court, after hearing counsel as to the
relative merits of Mr. Thesen and Mr. Steytler
for the office of liquidator, made an order placing
the company under the operation of the Winding-
up Act, appointed Mr. Thee en official liquidator,
and conferred upon him the powers given under
the 15th section of the Act. Security to be found
to the satisfaction of the Master in the sum of
£2,000.
BENALLT V. BENALLT.
Mr. Searle appeared for the plaintiff; the
defendant in person. This was an action for
divorce instituted by the plaintiff, Jerome Benally
(a French Creole), against his wife, Elizabeth
Benally, by reason of her adultery.
Proof of the marriage having been given,
Castina Meyer entered the box, and stated that
on the 80th March last she was at plaintiffs house,
when a coloured man named Louis called to see
Mrs. Benally. She was subsequently sent for a
bottle of wine, and on her return she learned from
plaintiff's nephew that defendant and the man
Louis were in the bedroom together. She (witness)
afterwards saw them in that apartment under
circumstances which she detailed to the Court.
In answer to the Chief Justice, witness said that
she only told plaintiff about this matter when he
had accused her of stealing his ring.
The evidence of last witness was corroborated
by the nephew of the parties.
The defendant then addressed the Court, pro-
tested her innocence, and stated that her husband
had induced the witnesses to give the evidence
which their lordships had heard.
Finally the Court granted a decree of divorce,
and gave the plaintiff the custody of the child, the
only issue of the marriage.
[Plaintiff's Attorney D. Tennant, jun.]
COMBBIKCK V. MTBT7BOH.
Mr. Juta and Mr. MoLachlan appeared far the
plaintiff, and Mr. Schreiner and Mr. Molteno for
the defendant.
The further hearing of this case, which was
partly disposed of en Tuesday last, was resumed.
Mr. Van Oudtshoorn, examined by Mr.
Schreiner, stated that he was a road superintendent
in the employment of the Divisional Council. He
lived on defendant's property, and on the morning
of the 4th February he was working in a quarry
about 100 yards from Mr. Myburgh's house. He
saw smoke on the mountain before the fire on
M) burgh's farm had been kindled. The smoke ap-
peared to be to the right of Kasteel's Kop. The
fire on defendant's farm was lighted about ten
ajn. The fire did net burn very quickly in the
morning, but in the afternoon the wind was very
violent, and the fire spread rapidly up the moun-
tain. The fire extended to the left of Kasteel's
Kop. In the evening he could not see the fire on
Kasteel's Kop, but he saw the reflection in the
sky. He was sure that was not Myburgh's fire.
Cross-examined by Mr. Juta : The wind was not
strong on the morning of the 4th February. He
oould not say whether fishing-boats could go out
that morning. He (witness) would not have gone ;
he was not fond of the sea. He could see the
mountain and Kasteel's Kop from where he was
standing. He was sure he saw smoke on the
mountain on the morning of February 4 before
the fire was lighted on Myburgh's farm.
Several other witnesses for the defendant were
examined, and they all positively asserted that
there was a fire on the mountain before the fire on
Myburgh's farm was lighted
After argument.
The Court (the Chief Justice dissenting) gave
judgment for the plaintiff in the sum of £60 and
costs.
The Chief Justice, in dissenting from his brother
judges, made the following observations in the
course of his judgment : The questions
to be decided in this case were purely questions of
fact, and these facts would no doubt strike different
minds in a different manner. The plaintiff had to
prove clearly that his neighbour had occasioned the
fire from which he had suffered damage.
A person who in the circumstances of this case
would be criminally liable would certainly be
civilly liable to his neighbour, but if the
defendant were on his trial, he doubted very much
if a jury would find him guilty ; he (the Chief
Justice) oeuld not honestly and conscientiously
convict him. Unless the evidence of the defend-
ant's witnesses was to be wholly disbelieved, there
were two fires burning on the mountain on the 4th
February, and it was just possible that the fire
from Kasteel's Kop reached plaintiff's farm before
the fire from Myburgh's. Under such circum-
stances, he wa* of opinion that the defendant
ought to have the benefit of the doubt ; as his
brother judges had, however, taken a different view
of the case, judgment would be given for the plaintiff.
[Plaintiffs Attorney H. P. du Preez, Defen-
dant's Attorney C. C. do Villiers.]
136
SUPREME COURT.
MONDAY, JUNE 8.
[Before the Chief Justice (Sir J. H. DE VlLLIERS,
K.G.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.
LIQUIDATORS PAABL BANK V. EXECUTRIX
AND HEIRS OF O. J BOUX.
Company — Bank in liquidation - - Contri-
butories — Executrix — Heirs — Liquidators
— Locus standi — Amendment of declara-
tion — Prescription — Costs.
Sir T. Upington, Q C, M.L.A., and Mr. Sohreiner
appeared for the plaintiffs, the liquidators of the
Paarl Bank, and Mr. Juta and Mr. Castens for the
defendants, the heirs of the late Gerhardus
Johannes Roux.
In this case counsel stated that the first
defendant was the widow and executrix of the late
G. J. Roux, and the second defendants the children
of the first defendant and her deceased husband,
the widow being sued in her capacity as heir. The
late G. J. Roux was the registered owner of eleven
shares in the Paarl Bank, and by his will he
bequeathed them to the defendants. He had been
married in community of property, and the widow
had the right to dispose of the shares if she had
ohosen. On the 26th June, 1876, the
first defendant filed an account of liquidation
and administration in the estate, and in that
account the shares were set down as an asset for
£66. The first defendant was awarded the sum of
£1,003 as executrix and £8310s.6d. as heir, and
the other two defendants were awarded
£831 Os. 6d. as heirs. The estate had been placed
on the list of contributories to the bank by an
order of the Supreme Court. It was stated bf the
defendants that there were no assets with which
to meet the bank calls, and the first defendant said
that she had distributed the money in the estate
to the heirs. The plaintiffs demanded payment of
the calls or a refund out of the estate, or that the
said sums which were awarded the heirs should be
set off as a part discharge of the bank calls. The
first defendant was in default, and the other two
heirs took exception to the declaration.
Mr. Juta took exoeption to the declaration, and
contended that the liquidators had no right to sue
and were not the persons to come into court. The
executrix was the person who must sue, and the heirs
must be sued. If money were to be recovered the
executrix must sue, and if the executrix did not do
her duty the Court could be moved by any creditor
to remove the executrix or compel her to do her
duty, as in the case of a negligent trustee in an
insolvent estate.
The Chief Justice said that under the English
law the creditor could sue, as in this case. The
consistent course was for the executor to sue, but
there might be a double liability, and the heirs
might be sued under certain circumstances. This
lady did not sue herself and she would not sue
herself. Did that amount to misconduct which
Troald entitle creditors to have her removed ?
Mr. Juta replied that it did, in his judgment.
Sir T. Upington argued that on the authority of
the case of Fischer v. The Liquidators of the Union
Bank (8 Juta, 46), the Court gave power to a
creditor to sue, as in the present case. Counsel
also referred to Hefmeyr'B case (C.T.L.R., 64).
Mr. Juta submitted that if the plaintiffs in this
case were allowed to succeed there would be no
finality whatever. It was dear that only the
executor could sue.
The Chief Justice : But suppose the executor
does not sue ?
Mr. Juta : That is not proved in this case, my
lord.
The Chief Justice : It is quite clear that Mrs.
Roux will nq} sue herself and her children.
Mr. Juta : She can be compelled by process of
Court.
After argument,
The Chief Justice said that in this case there
was virtually a judgment against the executrix of
the estate. A call had been confirmed by the
Court, and that really amounted to a judgment
against her. From the declaration it appeared
that the call had not been met, there having been
a return of nulla bona, but the executrix said she
had paid out the money to herself as surviving
spouse, and to her children as heirs. The question
was whether she was entitled to recover the money
back from the heirs, or not. If she were entitled
to recover, did she do her duty ? It
was clear she did not intend to do her
duty, and it did not appear likely that
she would sue herself and her children for
this money. The liquidators said they did not
wish to proceed to take extreme steps and have
her removed from her trust, because they could
not say there had been such misconduct on her
part as to justify that extreme oourse. They,
therefore, now sued as creditors of the estate for
sums of money paid to persons not entitled to
them. It being clear that the defendant would
not sue herself and her children, the plaintiffs
were, under the circumstances, entitled to sue.
It appeared further that there were other credi-
tors, among others the Union Bank, and inasmuch
as there were other creditors, he thought it would
be right that any moneys paid to Mrs. Roux
should be paid to her in her capacity as executrix,
so that she might administer the whole funds.
Under those circumstances the Court thought it
better that in the heading of the action there
137
should be plaoed after the word Bonx, "in her
individual capacity as well as her capacity as
•xeeatriz of the late G. J. Boux." If this amend-
ment were made there would be no objection to
the declaration.
Evidence was then led.
Gerhardos Johannes Roux, one of the defend-
ants, examined by Mr. Juta, said that all the heirs
agreed to value the shares at £65 in the
administration accounts. The dividends on the
shares had always been received and kept by his
mother-in-law (Mrs. Roux), and the bank knew
that the moneys in the estate were paid oat to the
heirs.
By Mr. Sohreiner : He did not aot for Mrs.
Bonx in the distribution of the moneys in the
estate, but her son assisted her.
Mr. Jnta pnt in a statement to the effect that
the Paarl Bank was perfectly solvent when the
estate was administered, and for years after, and
said that Mrs. Bonx paid ont £850 of this money
in November last as a compromise to the Union
Bank.
Mr. J. I. de Villiers, M.L.A., one of the
liquidators of the Paarl Bank, examined by Sir
T. Upington, said that with reference to an allega-
tion that the directors of the bank unlawfully
refused to register the shares in suit when desired
by the first defendant, a careful search of the bank
books failed to show a record of any such
occurrence.
By Mr. Juta : He knew who were the directors
of the bank from 1876 onwards. Most of them
were still alive.
After argument,
The Chief Justice said that the Court had
already decided on the exception that the plaintiffs
were entitled to sue the heirs if the executrix
would have been entitled to do so, as she dearly
would have been by the condidio indebiti. Such
being the case, they had next to consider when the
executrix's cause of action arose. In his (the Chief
Justice's) opinion, her cause of action arose as
soon as the money had been paid to the heirs,
when she would have been entitled to have
demanded repayment. If this view were
oorrect, then the plaintiffs were barred
by prescription from proceeding against
the heirs, and their only remedy was
against the first-named defendant in her
individual capacity. Judgment would therefore be
for the plaintiffs against the first defendant for
£1,337 9s. 6d. with costs against her in her indi-
vidual capacity, the oosts of the two last-mentioned
defendants to be paid out of the estate, failing
such payment by the first defendant individually,
and failing her by plaintiffs.
[Plaintiffs Attorney C. C. de Villiers, Defen-
dants* Attorney J. C. Berrange'.]
T
CAPE OF GOOD HOPE BANK (Iff LIQUIDATION)
V. FOEDE AND CO.
Promissory Note— Fixed Deposit Beceipts —
Compensation — Cession of action —Pro-
visional sentence — Final judgment.
The mere fact of indorsing a non-negotiable
instrument does not per se constitute the
indorsee the legal holder unless there has
been a bona fide cession of action.
A. cannot set off as against B. (A.'s creditor)
a debt due by B. to C. although
consents, unless C has ceded his right of
action to A.
Mr. Sohreiner and Mr. Watermeyer appeared for
the plaintiffs, the official liquidators of the above
bank, and Sir T. Upington, Q.C., for the de-
fendants.
This matter was before the Court on the 27th
November last, when provisional sentence was
granted for £1,800. The facts ef the case are as
follows : In June, 1890, the defendants had
overdrawn their account to the amount of £1,300
as security for which the bank held gold scrip. As
the bank demanded further security, Miss Ellen
Forde, daughter of the senior member of the firm,
placed at the disposal of the firm twe fixed deposit
receipts of the Cape of Good Hope Bank for £860
and £780, and a third of the Standard Bank for
£600 (the latter having been drawn from the Stan-
dard Bank and placed in the Cape of Good Hope
Bank at the bank's request). On the 30th June it
was arranged that a promissory note should
be passed and the scrip returned, the
note to be payable on demand, with an
understanding that it was to run for twelve
months, the firm paying interest. r l he three deposit
receipts, representing in all £1,630, were plaoed as
security at the disposal of the bank, with authority
and power to realise in case of failure to pay the
note by the firm. Miss Forde signed the necessary
document to pass the receipts into the bank's pos-
session, and authorised the bank to use the re-
ceipts to extinguish the promissory note for £1,800
if necessary. On the 19th September the bank
stopped payment, the note was presented, and Miss
Forde gave her oheque on the bank. This the
bank refused to accept, though in possession of the
amount of the deposit receipts. The defendant
firm now claimed the right to set off this amount
against the note.
Mr. Allan Wright, examined by Mr. Sohreiner,
stated that he was until recently manager of the
Cape Town branch of the Cape of Good Hope Bank.
He saw Miss Forde the day on which the
promissory note was given. He was of opinion
that she first endorsed the receipts and afterwards
138
signed the pledge. The bank had paid 12a. 6d. in
the £ in the liquidation. The bank had a farther
elaim against the firm for £376 as security, for
which it held Oriental gold shares.
Mr. Jeremiah Forde, senior partner of the firm
of Forde A Co., stated that the bank at the time
the promissory note was given held scrip which
had cost his firm £8,000, the market value of
which at that time was about £4,000. The bank
accepted the deposit receipts and returned the
scrip; as security for £876, the bank held 1,208
Oriental gold shares.
Miss E. Forde detailed the oiroumstances under
which the deposit receipts were lodged with the
bank and the pledge given.
Sir T. Upington, for the defendants, oontended
that on a strict question of law the plaintiffs
could not succeed. Forde 4 Co., through Miss
Forde's indorsement, were the legal holders ef the
receipts, and as soon as these had been accepted
by the bank compensation took place.
Mr. Schreiner, for the plaintiffs, said that he
could add nothing to the argument which had
already been addressed to the Court when the
ease came on for provisional sentence and which
was reported (8 Juta, 80).
The Chief Justice, in giving judgment, said that
there was nothing new in the case. The law as laid
down when the matter came before the Court for
provisional sentence was still applicable. The
mere fact of indorsing an instrument which was
not negotiable could not pass the property. There
must also be a cession of action, and as in this
case there had been no cession there could be no
compensation. Under these oiroumstances, judg-
ment must be given for the plaintiffs with costs.
[Plaintiffs' Attorneys Messrs. Reid & Nephew,
Defendants' Attorneys Messrs. Fairbridge &
Arderne.]
PETITION OP THOMAS MULVIHAL.
On the application of Mr. Schreiner, authority
was given to petitioner to cancel certain mortgage
bond passed by James Copeland in favour of peti-
tioner's father, who is absent from the Colony, and
without any duly-appointed representative.
SUPREME COURT.
TUESDAY, JUNE 9.
[Before the Chief Justice (Sir J. H. DE VlLLIERS,
K.C.M.G.), Mr. Justioe SMITH, and Mr.
Justioe Buchanan.]
NIEHAUB V. NIBHAUS.
Divorce — Notice of trial — In divorce cases
the defendant should have actual notice of
the date of trial.
Mr. Searle for the plaintiff ; the defendant in
default.
This was an action for divorce. The parties
were married, in community of property, in 1871,
at Tulbagh, and there were four children of the
marriage, three minors and one married. In the
years 1889 and 1890 it was alleged the defendant
committed adultery with a woman unknown to the
plaintiff, and the prayrr was for divorce, custody
of the minor ohildren, and a sum towards their
common maintenance.
The Chief Justioe remarked that the defendant
had not had actual notice of trial.
Mr. Searle said that he had had notice that the
trial would take place forthwith.
The Chief Justioe said that it was better in
oases ef divorce that the defendant should have
actual notice of trial.
Mr. Searle said that since he rose he had been
informed that such notioe had really been served,
though he did not know it when he first addressed
the Court.
The marriage having been formally proved,
Mrs. Niehaus deposed that she had four children
of the marriage, the three youngest, boys, being
with her. One was fifteen, one twelve, and the
other nine. For twelve years after the marriage
she and her husband lived at Tulbagh, but
afterwards went to Beaufort West. Her husband
was addicted to drink, and frequently ill-treated
her. Last November her husband went to Piquet-
berg in the service of Combrinok dk Co. He
returned on the 23rd December, and told her he had
committed adultery with a black woman at
Piquetberg. She afterwards came to Cape Town,
and whilst there received a letter from the re-
spondent in which he confessed to unfaithfulness.
The Court ordered a decree of divorce, the
plaintiff to have the custody of the children, and
the defendant to pay £3 per month till the
youngest child reaches the age of twenty-one
Defendant to pay the costs.
[Plaintiffs Attorneys Messrs, Fairbridge $
Arderne.]
139
BODLEY Y. BODLEY.
Mr. Graham for the plaintiff, the respondent in
default.
This was an action for divorce instituted by the
husband, Joseph Horatio Bodley, by reason of the
adultery of the wife, Christina Bodley. The par-
ties were married at Kimberley in 1884, and it was
alleged that in 1890 and 1891 the respondent com-
mitted adultery with Richard Johnson Partridge.
Plaintiff, a tobacconist at Kimberley, deposed
that for about two years after the marriage he
and his wife lived at Kimberley. At the end of
that time respondent left for Cape Town on
account of illness, and subsequently she also went
to Port Elizabeth and Graham's Town. In 1890
Mrs. Bodley was living at the Clifton Hotel, Cape
Town, and from information he received he
instructed a private detective, named Loader, to
make inquiries regarding his wife's suspected mis-
conduct.
Arthur Win. Loader, a private detective, gave
evidence that in March, 1890, Mrs. Bodley and
Partridge were living in the same house at New-
lands, and that on one occasion he watched them
retiring to the same bedroom. He was stationed
outside from eight o'clock to a quarter to eleven,
and watched their proceedings. He knew Mrs.
Bodley, who told him she was plaintiff's wife, and
that her husband was a tobacconist at Kimberley.
He gained admission to the house by asking for
apartments, and Mrs. Bodley did not know he was
engaged by her husband.
Maria Abrahams, a coloured servant at the
Clifton Hotel, stated that she was engaged there
during the latter part of 1890. She knew Mrs.
Bodley and Mr. Partridge. They were staying
together at tne hotel, and Mrs. Bodley on
one occasion told witness her husband lived
at Kimberley and was a tobacconist. She fre-
quently saw Mrs. Bodley and Mr. Partridge
eooupying the same bedroom.
By the Chief Justice : Mr. Bodley never came to
thehoteL
The Chief Justice asked if there were any
photographs?
Mr. Graham saH no, but Mr. Loader could take
plaintiff to the house where Mrs. Bodley was now
living.
The Chief Justice : Tou see there might be two
Bodleys in Kimberley who are tobacconists ?
The plaintiff, recalled, said there was no other
tobacconist named Bodley in Kimberley but him-
self. He had destroyed some of the letters sent
by his wife from the Clifton Hotel.
A decree of divorce was granted, the defendant
to forfeit all benefits derivable under the marriage
in community.
[Plaintiffs Attorneys Messrs. Fairbridge 6
Aiders*.]
HONEYBOBNE V. HONEYBOBNE.
Will — Codicil — Fidei-commissum — Executors
Testamentary and Dative — Bond — Gift or
Loan — Shares in bank in liquidation —
Residuum — Costs.
Mr. Sohreiner appeared for the plaintiffs, and
Mr. Juta and Mr. Watermeyer for the defendant.
ThiB was an action instituted by the official
liquidators of the Union Bank (in their capacity
as executors dative of the estate of the late
Julia M. C. Honey borne, at the time of her death
a registered holder of twelve shares in the Union
Bank) against Mr. George Brittain (in his capacity
as surviving executor testamentary of the ettate
of the late Mr. John Alfred Honeyborne) to
recover the sum of £1,000, being the amount
advanced by the late Mrs. Honeyborne to her
husband's estate, with interest a tempore mora,
Mr. and Mrs. Honeyborne were married without
community of property. Mrs. Honeyborne sur-
vived her husband. Mr. Honeyborne left a will
bequeathing all his property to his children, but
subject to the conditions that his wife should
enjoy the usufruct and profits thereof during her
lifetime. Mrs. Honeyborne and ' one Brittain
were appointed executors. In his estate was some
landed property on which there was a bond of
£1,600 in favour of one Haupt. Mrs. Heney-
borne's father, John Dyason, had shortly before
died. By his will he had left half his property
absolutely to bis daughter, Mrs. Honeyborne.
But to the will he added a codicil in these terms :
" I will that the bequest in favour of my daughter,
Julia, shall be subject to a Jidei commissum in
favour of her children, to the intent that my said
daughter shall enjoy the uacontrolled use of the
property during her lifetime, but that all that
remains at her death shall go to her said
children." Under Dyason's will Mrs. Honey-
borne received about £1,200 in cash and twelve
shares in the Union Bank. The shares were
transferred into her own name. Out of the cash
she received Mrs. Honeyborne paid £1,000 off the
bond due by her husband's estate to Haupt. Mrs.
Honeyborne died shortly after the stoppage of the
Union Bank. She left a will bequeathing her
property to her children, but the executors named
in the will declined to accept. The liquidators of
the Union Bank, as creditors of Mrs. Honeyborne
for the amount due on calls on the shares had
themselves appointed executors dative of her
estate. They now sued the surviving executor of
Mr. Honey borne's estate to recover the £1,090.
The declaration alleged that the £1,000 had been
advanced to the estate of Mr. Honeyborne at the
request of his executors. The plea denied the
request by Mr. Honeyborne's executors, and
alleged further that Mrs. Honeyborne had paid in
i40
the money to benefit herself and her children
who were alone interested in the estate of her
deceased husband. The plea further set forth the
codicil to Dyason's will, and alleged this £1,000
was recived from Dyason and that under the
codicil this money was not the absolute property
of Mrs. Honeyborne, but passed to her children at
her death.
Replication: No gift by Mrs. Honeyborne in
favour of her husband's estate was registered.
Mr. Schreiner for plaintiffs, called Mr. G. W.
Steytler, one of the executors of Mrs. Honeyborne,
and one of the liquidators of the Union Bank, who
gave formal evidence.
Mr. Juta (with Mr. Watermeyer), for defen-
dants, contended that under the codicil this money
belonged to the ohildren and the executors had no
olaim on it.
Mr. Schreiner : This codicil creates at most a
Jidei commissum residui and the fiduciary has the
power to alienate at least three-fourths.
The Chief Justice : She has power to alienate,
but she has not alienated and therefore the Jidei
commissum takes effect.
The Court expressed an opinion that the
ohildren would be entitled to this money, but it
would be necessary for the executors of Mrs.
Honeyborne to administer it.
After this expression of opinion Mr. Juta did
not press the other defences rained in the plea.
The Chief Justice, in giving judgment, said that
no attempt was made to prove that the £1,000 was
a gift, so the Court must take it that it was lent.
If it was money lent it was clear there was no
alienation, and upon her death the £1,000 belonged
to the ohildren, who should claim it in her estate.
The judgment would be for the plaintiffs, their
costs to come out of Mrs. Honey heme's estate,
defendants' costs to be paid out of Mr. Honey-
borne's estate.
[Plaintiffs' Attorney, C. C. de Villiers ; Defen-
dant's Attorneys Messrs. Van Zyl and Buissinne.]
STAPLES V. 8WANEFELDEB.
Pound Ordinance —Act 31 of 1875— Con-
travention— Trespass— Consequential dam-
ages — Resident Magistrate's decision-
Appeal.
Mr. Schreiner appeared for the appellant, and
Mr. Searle for the respondent.
This was an appeal from a decision of the Resi-
dent Magistrate of Middelburg, given in a case
heard before him on the 12th March last. The
appellant (the defendant in the Court below) was
summoned by the respondent for having (as it
was alleged) contravened Act 81 of 1876, section 8,
in consequence of which the plaintiff (present
respondent) sustained damage in the sum of £4
18s. Id. The summons alleged :
Firstly, that the defendant wrongfully and un-
lawfully contravened the 3rd section of the Pound
Act of 1876 by preventing the plaintiff, through the
act of his (defendant's) servants, from satisfying
the damage caused by the trespass of
certain twenty-three horses belonging to the
plaintiff (before the* hones had been impounded),
as the plaintiff would have done if defendant's
servants had taken the horses to the pound by the
nearest road thereto as required by law, but the
defendant's servants avoided the nearest road, on
which plaintiff was standing ready to release his
stock, by which act the plaintiff, was damaged as
follows: (a) £1 3b, being the amount paid the
poundmaster for inclosing and receiving the
animals ; (6) 2s. 6d., extra mileage which he would
not otherwise have paid ; (c) the costs of sending a
man from his work to the pound to release
the horses, 10s.
Secondly, that on the 24th February, 1891, the
defendant again contravened the Act by refusing
the sum of 6s. tendered to his son, who was acting
for and en behalf of the defendant, as being suffi-
cient to satisfy the damage caused by the trespass of
nine horses and one stallion, the property of the
plaintiff, by reason of which refusal the plaintiff had
been damaged in the following : (a) Mileage paid
for an extra driver, 2s. 7d. ; (6) penalty enforced
on a stallion at the pound, £1 ; (c) the impound-
ing of nine horses and one stallion, 10s.; (d)
journey into Middelburg to lodge complaint and
commence action, £1 10s. ; making a total of £4
18s. Id. The Magistrate gave judgment for the
plaintiff for 18s. on the first count, and for
£3 6s. Id. on the second count; from this
judgment the defendant (now appellant) appealed.
— Mr. Schreiner, in support of the appeal, contended
that there had been no contravention of section 8,
the horses had been driven by the nearest route to
the pound. The road upon which the respondent
was standing was a disused road, and there was no
onus cast upon the appellant to travel by that road.
He (counsel) submitted that the finding of the
Magistrate on the first oount was wrong. The
second count was mainly based on consequential
damages, and the Magistrate again erred in giving
judgment for the plaintiff.
Mr. Searle, in reply, urged that the respondent
was bound to drive the horses by the nearest road
to the peund, and in any event he had no right to
drive them, as he had done, across respondent's
land. The expenses claimed in the second count
were reasonable, and such as the Court would
allow.
The Chief Justice, in giving judgment, said that
the Magistrate had clearly erred in giving judg-
ment for the plaintiff (respondent) on the
« -9
141
first count. There was nothing illegal in
the defendant's taking the shortest route
to the pound, and in his (the Chief Justice's)
opinion there had been no contravention of the
Act. With regard to the second count, the plain-
tiff would have been liable under any circum-
stances to pay £1 for the trespass of his stallion.
The £1 10b. was purely consequential damage, which
the Court never granted. Under these circum-
stances, the judgment of the Magistrate would be
altered to that of one for the plaintiff for 12s. 7d.,
with costs in the Court below, the respondent to
pay the costs of the appeal.
[Appellant's Attorneys Messrs. Fairbridge A
Arderne, Respondent's Attorneys Messrs. Van Zyl
dk Buissinne.]
SUPREME COURT.
WEDNESDAY, JUNE 10.
[Before the Chief Justice (Sir J. H. DE VlL-
LIEB8, K.C.M.G.), Mr. Justice Smith, and
Mr. Justice Buchanan.]
CO PEL AND V. SHORT AND CO.
Sale — Justus error — Restitutio in integrum —
Fixtures — Broker's note — Notice — Con-
duct of vendor such as to induce vendees
to believe that they were buying articles
which had previously been sold — Tender —
Arbitration — Costs.
Mr. Schreiner and Mr. Shiel appeared for the
plaintiff, and Mr. Searle and Mr. Castens for the
defendants.
This was an action instituted by Mr. James Cope-
land until recently proprietor of the Phoenix Foun-
dry Cape Town, against the defendants, Short & Co.,
owners of the Vulcan Foundry, for the sum of
£150, being the first instalment of a sum of £860,
the purchase price of certain iron foundry stock-
in-trade sold by the plaintiff to the defendants on
the 18th February last. The defence set up by
defendants was that the purchase price of £300
included the price of a crane and two oupola-
furnaces, whioh the plaintiff had failed to deliver.
The defendants tendered the sum of £125, being the
first instalment of £250, which they alleged was the
full value of the articles which they had actually
received or offered to go to arbitration in the
matter. The plaintiff denied that the crane and
cupola-furnaces had been included in the sale
(they having, as a matter of fact, been already sold
to Mr. W. C. Cooper, the purchaser of the Phoenix
Foundry), and refused the tender offered. Upon
these facts issae was joined.
The plaintiff deposed that the price agreed upon
for boxes, patterns, and sorap iron was £205. He
asked the defendants to take over the rest of the
movables, and they offered £50, or about that.
Nothing was said about the crane or the furnaces,
or the engine and boiler. They were fixtures, with
the shear-legs and mill. The crane and furnaces
had been valued at £100, but he thought they were
worth more. The crane was practically immovable
from the building, of which it formed part. No
man in the trade would call that a movable,
article. The furnaces were sunk into the ground,
and could not possibly be called loose property.
In February, Mr. Sam Short asked what Mr.
Cooper intended to do with the premises, and
witness replied that he was going to run it as a
foundry. Mr. Short said that perhaps Mr. Cooper
would take the crane, and witness said the crane
was Cooper's already. Short said he thought the
crane was theirs, but witness said that was not so.
After that the defendants continued taking de-
livery of the goods. The Shorts never claimed
the furnaces until April.
Cross-examined by Mr. Searle: Mr. Short ap-
proached him on the question of purchase on the
afternoon of the day on whioh Cooper bought the
premises. He did not on that occasion deny that
he had sold the place, nor did he then mention the
crane or the furnaces. He had not brought the
action because Cooper had claimed the crane and
the furnaces. He pointed out the three movables
that the Shorts were not to have, but the crane
and furnaces were never once referred to, being
fixtures.
Abraham Felix, until recently foreman to the
plaintiff, stated that he was present on the 18th
February when Messrs. Short came to the foundry.
Mr. Copeland asked the Shorts to clear out the loose
material, and they agreed, after some bargaining,
to pay him £800. The crane and the cupolas were
never once mentioned.
Cross-examined by Mr. Searle : He had never
told a Mr. Taylor that the crane and the cupolas
were inoluded in the £300, nor did he tell that to
Mr. Short.
Mr. W. C. Cooper, coachbuilder, deposed that
he purchased on the 17th February the building
and the crane and cupolas, whioh were inoluded in
the things detailed in his broker's note.
Mr. Gearing, of the firm of Cunningham &
Gearing, gave it as his opinion that the crane and
furnaces were worth £100 as they stood, to any-
one continuing the foundry as a business.
Cross-examined : The orane had been in use for
thirteen years, and the purchaser would have to
take it down, by whioh some expense would be
entailed. He would not himself have given £250
142
for what Messrs. Short had got. He meant by
that what Messrs. Short pointed out to him, bat
that did not include the drilling machine, bellows,
and anvils. He would not have given more than
£50 for the crane and cupolas if he had had to re-
move them trom the foundry and re-erect them.
By Mr. Schreiner : He did see not the mill, the
large bellows, the shear-legs, the office furniture,
or the drills.
By the Court : He would have given £220 for
all the articles he saw at Messrs. Short.
Mr. Samuel Short, part proprietor of the Vulcan
Ironworks, gave evidence that the only things
excepted in the sale were the engine, the boiler,
the blast-fan, the small bellows, the forge, the old
brass, the pig-iron, and the platform scales. Mr.
(Jopeland did not exclude tho cranes and the
cupolas. The man Felix had said to witness that
he was under the impression that the crane and
oupolas were sold to him and included in the £300.
The only reason why he had offered £250 for the
articles he had got was that he desired to keep the
case out of court. The crane and cupolas, which
were movable without much difficulty, were not
worth above £50 to witness.
Gross-examined : There was no mention of £205,
and he never agreed to pay that Bum for part of
the articles. There were not two transactions in
the matter. He did not think Gopeland told him
the orane was Cooper's. At the time he spoke to
Felix the cupolas had never been mentioned, but
Felix volunteered the statement that witness had
bought the crane and cupolas. Mr. Gearing valued
the things on Tuesday at the request of witness.
He had used the articles, as they had been required,
in his business.
Mr. Thomas Short, brother of the last witness,
deposed that plaintiff pointed out the crane and
cupolas on the 17th February, and said that they
were for sale. He had heard his brother's evi-
dence, and said that it was correct. Everything
was pointed out, and it was dearly understood that
the crane and cupolas were included in the £800.
Mr. Taylor, an engineer at the Docks, examined
by Mr. Searle, stated that he had seen most of the
articles bought by the defendants. He considered
the price given a fair one. He had valued the lot
at £226. There was a good deal of rubbish, and
this he had included under the heading of etceteras.
This concluded the evidence. The hearing of the
argument was postponed until to-morrow.
SUPREME COURT.
THURSDAY, JUNE 11.
[Before the Chief Justice (Sir J. H. DB
Villiers), Mr. Justice Smith, and Mr.
Justice Buchanan.]
PROVISIONAL ROLL.
UNION BANK V. 8HACKELL.
Mr. Schreiner moved for final adjudication of
the defendant's estate. — Granted.
REHABILITATIONS.
On motion from the bar, the rehabilitation of
the following insolvents was granted : Cornelia
W. du Plooy and Johannes Abraham Benjamin
van Wyk.
GENERAL MOTIONS.
PETITION OF CATHERINE J. M. TRUTER.
Mr. Watermeyer moved for leave to sue in
forma pauperis in an action- against her husband
for restitution of conjugal rights, failing
which for divorce, custody of the minor children,
and division of the estate.
Referred to counsel for his certificate.
PETITION OF EXECUTORS OF THE ESTATE
OF PIBNAAR.
Mr. Maskew moved for authority to the Regis-
trar of Deeds to correct an error in the deed of
transfer relating to three erven in the village of
Bethesda, by substituting the name Jacobus for
that of Johannes.
The Chief Justioe remarked that it was extra-
ordinary how frequently these mistakes occurred.
A rule nwt, returnable July 12, was granted,
calling upon the parties conoerned to show cause
why the alteration should not be made. Notice of
the rule to be published in the Government Gazette
and in a Graaff-Reinet paper.
PETITION OF THE MASTER OF THE SUPREME
COURT.
Mr. Giddy moved for the appointment of a curator
ad litem in proceedings about to be instituted by
the authorities of the Old Somerset Hospital to
have one Ryno J. M. Bnxman declared of unsound
mind and incapable of managing his affairs.
The order was granted, and Mr. Tredgold
appointed curator ad litem.
143
BUBOBB6 V. BUBGEBS.
Thii case was postponed till next term, and Mr.
Juts, as curator ad litem, requested to make
inquiries as to the case for the minor heirs
interested.
BULTFONTEIX MINING BOABD V. LONDON AND
SOUTH APBICAN EXPLORATION COMPANY
AND ABM8TB0NO.
Mr. Schreiner made an application for the fixing
of a day out of term for the hearing of this case.
The Court fixed June 24 as the day on which
the action will be heard.
ABBAHAMSE VS. ABBAHAMSE.
Mr. HcLachlan for the plaintiff ; defendant in
default.
This was *n action for divorce, instituted by the
husband by reason of his wife's adultery.
The plaintiff, Dirk Abraham Be, deposed that he
was married in I860, there were two children of
the marriage. His wife left him about eighteen
years ago, and had not lived with him since.
8ophia Abrahamse, plaintiffs daughter, gave
evidence of her mother's infidelity with one John
Idssenberg at the house where witness worked.
Plaintiff, recalled, said he had waited eighteen
yean to get his divorce because he had not been
able to pay the costs. . He sued now in forma
pauperis.
A decree of divorce was granted.
COPE LAND V. SHOBT AND CO.
The hearing of this case was resumed.
Mr. Schreiner and Mr. Shiel appearing for the
plaintiff, and Mr. Searle and Mr. Castens for
the defendants.
Mr. Schreiner argued that it was dear that
nothing had been said when the sale took place
about the crane and cupolas, and it was impossible
that Oopeland could have intended to sell to the
Bherts what he had already sold to Cooper. He
contended that, the defendants not having followed
the course prescribed by the law, the plaintiff was
entitled to a verdict upon the oontract.
When the Shorts found that Copeland would not
give them the cranes and cupolas he submitted
that they should at once have sent back the goods
they had taken. Instead of that, however, they
continued taking delivery, and had used and sold
some of the articles. Defendants by their own
sets had rendered a restitutio in integrum im-
passible. Counsel, in his argument, referred to
the following authorities: ''Benjamin on Sale," 4th
edition, 887, 898, 946; "Logan v. Beit" (7 Juta
197) ; "Harnor v. Groves" (16 C.B., 667).
The Chief Justice remarked that cases of this
sort sometimes led him to think of the superiority,
in some respects, of the English law, under which
sales of the value of over £10 were made in
writing. Had such a course been followed in the
present case, the Court could have let the writings
speak for themselves.
Mr. Searle, for the defence, contended that the
plaintiff found that he had sold to two persons —
Cooper and Short <fc Co. Copeland was in the
position jbhat he had actually sold some of the
fixtures, the mill, and the shear-legB, and the
evidence ef the Shorts was clear on the point that
he also sold them the orane and the cupolas. The
plaintiff had misled the defendants, and therefore
oould not recover on the contract- The element of
value was important in the case, the parties being
men of experience, and the evidence of Mr.
Gearing, brought by the plaintiff, was to the effect
that the goods the Shorts were asked to pay £300 for
were at a liberal valuation not worth more than £250.
The whole difficulty had arisen because the plain-
tiff had inadvertently sold to two parties, and he
must in law take the consequences of his own
error. He proceeded to quote " Irvine & Co. v.
Berg" (Buchanan, 1879, p. 188). His clients had
several times informed Mr. Copeland that the
cash was ready whenever delivery was completed,
or they were prepared to return the goods they had
got.
The Chief Justice, in delivering judgment, said
the Court always had a difficulty in deciding in
oases like the present where there had been a con-
flict of evidence. The broker's note was certainly
in favour of the plaintiff, inasmuch as the crane
and cupola-furnaces were specially mentioned as
having been sold with the premises to Mr. Cooper.
The plaintiff, however, did not show the broker's
note to the defendants, and there was no evidence
that the defendants had notice that the articles in
dispute had already been sold. Again, the oonduct
of the plaintiff was such as to induce the de-
fendants to believe that they were really buying
the crane and furnaces. Under all the circum-
stances of the case, he was inclined to think that
the defendants were entitled to a verdict. Judg-
ment would therefore be for the plaintiff for £125,
the amount of the tender with costs up to date of
plea, the subsequent costs to be paid by the
plaintiff. With regard to defendants' claim in re-
convention, the judgment would be absolution
from the instance.
Their lordships ooncurred.
[Plaintiffs Attorneys, Messrs. Van Zyl &
Buissinne; Defendants' Attorneys, Fairhridge $
Arderne.]
144
SUPREME COURT.
FRIDAY, JUNE 12.
[Before the Chief Justice (Sir J. H. DE VlL-
LIER8, KC.M.G.), Mr. Justice SMITH, and
Mr. Justice Buchanan.]
CHURCHWARDENS OF THE DUTCH REFORMED
CHURCH, ALIWAL NORTH V. GREEN.
Lease — Reduction of rent — " Unlimited
period " — New arrangemeut — Construc-
tion.
Mr. Searle for the plaintiffs ; Mr. Sohreiner for
the defendant.
This was an action instituted by the Kerkraad
of the Aliwal North Dutch Reformed Ghuroh
to recover from the defendant, Mrs. Green, £315,
alleged to be due upon a written lease between the
parties. The declaration set forth that on the 17th
April, 1 883, a written agreement was entered into
between the parties, and a lease signed for the
tenanoy of certain premises for ten years, as from
the 26th November, 1881, the rental to be £316
per annum, payable every four months. The defend-
ant entered into possession of the premises, and in
1888 was in arrear with her rent. On October the
20th the plaintiffs agreed, in consideration of bad
times, to make a temporary reduction in rent, as
from the 26th April, 1888, to £100 a year. On
November 26, 1889, defendant was given notice
that the reduction would no longer be allowed, and
that fiom March 26, 1890, the rent would have to
be paid in accordance with the terms of the lease.
Defendant refused to pay the rent and was sued in
the Resident Magistrate's Court at Aliwal in June,
1890, for £100, being part of the rent. The de-
fendant excepted to the summons on the ground
that the sum in dispute was beyond the jurisdiction
of the Magistrate, but the Court overruled the
objection and gave judgment for the plaintiffs,
whereupon defendant appealed to the Eastern
Districts Court, which reversed the decision of the
Magistrate. The plaintiffs claimed £315, a full
year's rent, now due. The defendant admitted the
formal facts, but said that in Ootober, 1888, the
lease was set aside in respect to its terms and the
annual rental, and that it was thereupon agreed
that the premises should be leased for an un-
limited period at an annual rental of £100,
as from July, 1888. Defendant admitted that
notice was given her, and the old rental was to be
charged again, but said that such notice did not
bind her, a new contract having been entered into.
She tendered £100, being the amount of all the
rent she stated to be due.
Mr. Johannes Stephanns de Wet, a member of
the Kerkraad, gave evidence in Dutch as to the
action of the Kerkraad, and the correspondence
between the parties.
By Mr. Schreiner : The property had undergone
considerable improvements whilst in the plaintiff's
possession.
Mr. E. G. Orsmond, M.L.A., of the firm of
Saner dk Orsmond, plaintiffs attorneys, stated that
he would not receive the £100 which was tendered,
because he did not oonsider it a legal tender Mrs.
Green was a wealthy woman.
The defendant deposed that she was only getting
£50 a year from the premises at present, and
had never received £100 on account of the
property since the reduction took place. She had
paid no rent since November, 1889, but had always
been ready to pay at the rate of £100 per annum.
After November, 1889, the Kerkraad refused to
take payment at £100 yearly. The lease gave her
the option of renewal for a further period of
twenty-three years, but she was unable to con-
tinue the lease at £315 per annum. She had spent
£1,600 on the property, and was prepared to con-
tinue the lease for twenty- three years at £100
yearly. The Kerkraad was anxious to resume
possession of the land she held, in order to erect a
parsonage upon it.
Mr. Searle, in addressing the Court, said that
the Court had simply to construe the agreement
between the parties. If the defendant's conten-
tion were to be accepted by the Court it would
mean that the defendant could retain possession of
the property for ever at an annual rental of £100.
It was clear that the expression " unlimited
period," used by the Kerkraad when it authorised
the reduction, simply meant a period determinable
by the Kerkraad. .
Mr. Schreiner argued that when the Kerkraad
granted the reduotion it terminated the old lease
and commenced a new arrangement. Mrs. Green
had always been willing to hand over to the Kerk-
raad anything over £160 which she received upon
the property.
The Chief Justice in giving judgment said that
the terms of the lease were clear and distinct. In
October, 1888, Mrs. Green obtained a reduction of
rent for an indefinite period, and it was clear that
was a favour, a mere grace on the part of the Kerk-
raad to Mrs. Green. The arrangement was
dearly subject to notice by the churchwardens,
and in 1889 they resolved to revoke the favour
granted to Mrs. Green. If the notice had been
given after November, 1889, there might have been
some force in the argument of counsel for the
defence, but notice was given before that time.
Judgment would be given for the plaintiffs with
costs.
[Plaintiffs' Attorneys, J. W. Sauer; Defen-
dants 1 Attorneys, Messrs. Fairbridge 6 Arderne.]
i45
WHBKLEB V. WHEELER.
Mr. Molteno for the plaintiff, defendant in
default.
This was an action by the husband, William
Andrew Wheeler, for restitution of conjugal
rights, failing which for divorce, by reason of the
wife's desertion. Plaintiff married in 1876, and in
January, 1890, his wife left him. She went to
Cape Town for medical advice, and had since
refused to come back to him, her excuse being
that she did not care to live at Simon's Town,
where plaintiff lived.
The Chief Justice aaid that the wife had written
to the Registrar stating that owing te expected
confinement she was unable to attend the Court.
The Court granted the order as prayed, defendant
to return to the petitioner within a certain period,
failing which to show cause on the last day of next
term why a decree of divorce should not be granted.
[Plaintiffs Attorneys, Messrs. Van Zyl &
Buissinne.]
WILSON V. WILSON AND MINNAAR.
■
Mr. Molteno for the plaintiff ; Mr. Juta for the
defendant Wilson.
This was an action for divorce by the husband
against his wife, Jane Wilson, by reason of her
alleged adultery with the defendant Barend
Minnaar. The plaintiff sought a decree of divorce,
£100 damages against the defendant Minnaar, and
the custody of his children. The defendants
pleaded separately. The first defendant denied
the adultery, and claimed in reconvention a separa-
tion and the custody of the children, and alleged
that her husband had committed adultery with one
Bannie van Wyk. The second defendant denied
the adultery, and set up the plea that the plaintiff
was debarred from suing him by reason of his own
adultery with Van Wyk.
Mr. Molteno stated that all the parties resided at
Fraserburg, where the plaintiff was poet-cart driver.
The evidence was taken at Fraserburg on commis-
sion, and counsel remarked that all the gossip of
the neighbourhood appeared to have come up.
The evidence taken on commission having been
read,
The Chief Justice, in giving judgment, said that
all the parties concerned were equally guilty. The
judgment of the Court would be absolution from
the instance with regard to the claim in convention,
and in reconvention, one farthing damages would
he given against the defendant Minnaar, eaoh side
to pay its own costs.
[Plaintiff's Attorneys, Messrs. Tredgold,
Kdntyre 6 Bisset ; Defendant's Attorney, C. F.
Pieri.]
U
MILLER V. RICHMOND LICENSING COURT.
Licence — Act 28 of 1883, sections 42, 47 and
48 — Rights of Licensing Court — Refusal
to grant licence — 190 rule of Court —
Review.
Sir T. Upington, Q.C, appeared for the
appellant ; and Mr. Searle for the respondents.
This matter came on review under the 190th rule
of Court from a decision of the Licensing Court of
Richmond refusing applicant a hotel licence, on
the grounds that the said refusal was informal,
irregular, and contrary to law. The appellant
claimed that he was entitled to a licence, and
prayed for costs de bonis propriis of certain mem-
bers of the Licensing Court.
Sir T. Upington said that his contention would
be twofold : (1) That the formalities of the law
had not been complied with ; and (2) that the
evidence on oath which appellant had tendered had
not been accepted. Counsel then referred to Act
28 of 1888, and contended that the refusal of the
Licensing Court could not have been under the
48th section ; they must then have proceeded
under section 47, in whioh latter case he submitted
their aotion was illegal.
The Court, without calling upon Mr. Searle,
gave judgment.
The Chief Justice said that Sir T. Upington had
argued the case very clearly and very fairly, but he
(the Chief Justice) was of opinion that the
Licensing Court had acted quite within their
rights. His lordship then referred to the 47th
section, and said that the petition upon which the
licence had been refused set forth sufficient reasons
for the refusal. With regard to the second con-
tention, the 42nd section did not make it com-
pulsory to take the evidence upon oath, the Court
had a discretion, whioh in the present case they had
exercised. The application would be refused with
costs.
[Appellant's Attorney, Paul de Villiers; Res-
pondents' Attorneys, Messr*. Fairbridge 4 Ar-
derne ]
WEIGHT Y. THE COLONIAL GOVEBNMENT.
Mr. Searle (with him Mr. Schreiner) applied for
the issue of a commission to take the evidence,
de bene esse, in Lenden of witnesses for the
plaintiff.
Mr. Jones, for the defendants, consented.
The Court granted the order as prayed for, with
leave to the defendants to produce evidence.
Mr. Priohard, barrister-at-law, was appointed
commissioner.
146
PETITION OF MABGARETHA A. RICHARDS.
Mr. Tredgold moved for a rule nut calling upon
petition er's husband to show cause why she should
not be admitted to sue him in forma pauperis in
an action for restitution of conjugal rights, failing
which for divorce, by reason of his malicious deser-
tion. It appeared from an affidavit read that Mr.
Richards deserted his wife about twenty years ago,
and was last heard of in 1886, when he was
supposed to be in living in Ontario, Canada.
The Court granted a rule niti, returnable on the
20th November next, publication of the rule to be
made in the Ontario Globe, the intend it to be
served with the rule.
Mr. Tredgold was appointed counsel, and Messrs.
fUid dk Nephew attorneys.
SUPREME COURT.
[Before the Chief Justice (Sir J. H. DE
VlLLIEBS, K.C.M.G.), Mr. Justice SMITH,
and Mr. Justice BUCHANAN.]
SATURDAY, JUNE 13.
PROVISIONAL ROLL.
BLUITEB AND NE8ER V. MEDGALF.
Promissory Note — Provisional sentence —
Supreme Court Costs — A. v. B. (Buch.
1868, p. 240) considered— Act 20 of 1856,
section 35.
Mr. Watermeyer moved for provisional sentence
on a promissory note for £6 odd.
The Chief Justice asked why the oase had not
been brought in the Magistrate's Court.
Mr. Watermeyer said that one of the parties
lived at Colesberg, and he submitted that the
plaintiff had a right to sue in the Supreme Court.
The Chief Justice: Yes, but should the Court
allow Supreme Court costs ?
Mr. Watermeyer cited the case " A v. B "
(Buohanan, 1868 p. 240), in which a defendant
residing in Port Elizabeth was sued by a plaintiff
residing in Uitenbage for an amount of about £I2 ?
and although the Court was inclined to grant only
Magistrate's Court oosts, it was found by the Act
of 1866 that the matter was beyond the discretion
of the judges, and Supreme Court oosts were
given.
Mr. Justice Smith : But in that oase the plain-
tiff could not sue in the Magistrate's Court in
Cape Town.
Mr. Watermeyer: That is so, my lord.
The Chief Justioe said he was informed that
the oosts of provisional sentence would amount to
£8. The attorneys might just as well have sued in
the Magistrate's Court. It was clear that although
the Couit must grant the order the Act needed
amending.
Provisional sentence was then granted.
8TANDABD BANK V. J008TE.
Mr. Searle moved for provisional sentence en a
mortgage bond passed in January, 1887, in favour
of one Quinn, and ceded by him to the bank. It
was for the sum of £606, with interest at 7 per
oent. from December, 1886. Notice had been
served on the defendant. — Provisional sentence.
HELLISH Y. FLOBI8.
Mr. Watermeyer moved for provisional sentence
on a mortgage bond for £70, passed by the
defendant in favour of one Geyer, and oeded by
him to the plaintiff, with interest from February,
1890, at 6 per oent. — Provisional sentence.
8ICHEL V. KANNEMEYEB.
Mr. Juta moved for provisional sentence en a
mortgage bond for £300, with interest from
February, 1889. — Provisional sentence.
H. BOS8 AND CO. V. PBRLE.
Mr. Shiel moved for judgment for £77 8s. 2d.
balance of account for goods sold and delivered.—
Judgment granted.
THE MABTEB V. BUXMAN.
De lunatico inquirendo.
Mr. Giddy appeared for the Master ; and Mr.
Tredgold as curator ad litem for the respondent.
This was an application by the Master of the
Supreme Court, in whose hands £160 is placed on
behalf of Buxman, for an order declaring him
of unsound mind and incapable of managing his
affairs. — Dr. Cox, surgeon in charge of the Old
Somerset Hospital, stated that the patient, who
was admitted to the hospital sixteen years ago
under the name of Buxman, was suffering from
chronic mania bordering on imbecility. He was
incapable of managing his affairs. He was about
82 years old, and likely to become leas sane as he
grew older.
The Chief Justioe asked if anyone had identified
the man as Byno Buxman.
147
Dr..Cox said tha*. the superintendent remem.
bend Buxman's grrandmother visiting him. There
teemed no doubt that his name was really Bnxman.
Mr. Tredgold said that on Friday he visited the
alleged lnnatic, who told him his name was Ryno
Bnxman and that he wanted someone to manage
his property. He appeared very weak-minded
indeed.
Mr. Justiee Smith : Has the man been detained
sixteen years as a lunatic without the Oourt being
approached ?
Mr. Giddy said that a Magistrate's order had
been secured, and that was sufficient.
The Court declared Bnxman incapable of
managing his affairs, appointed Dr. Cox curator of
his person, and authorised the Master to pay £24
per year for the maintenance of Buxman at the
Hospital.
HILL AND PADDON V. COLONIAL GOVERNMENT.
Mr. Juta for the plaintiff ; Mr. Sohreiner for
defendants.
Judgment in terms of consent paper put in was
ordered.
REHABILITATIONS.
The Court granted the following rehabilitations :
Isaac Btephanus Jacobus Marais, William
Thomas Birch, Christian Btephanus da Plessis,
Alexander Thompson, William Jacobus van der
Merwe.
PETITION OP THE TOWN COUNCIL OP
PORT ELIZABETH.
Mr. Searle moved for an order authorising the
Sheriff to rank petitioners in the distribution of the
proceeds of certain derelict lands, sold by order of
the Court, for the purchase price of such lots as re-
mained unpaid for by the original buyers at the
sale held in 1863.
The Court granted an order authorising the
Sheriff to pay to the Master the balanoe of the pro-
ceeds, in terms of the Derelict Lands Act, and also
a rule nisi, calling upon W. S. Craig, John Dixon,
and John Passmore, or their lawful representatives,
to show cause en the last day of next term why
the proceeds should not be paid to the applicants,
in terms of the seventh of the conditions of sale,
the rule to be published three times in the Gazette,
once in each of the Port Elizabeth papers, and
once in the Graham's Town Journal.
ROTHWELL V. ROTHWELL.
Mr. Jones moved for the issue of a commission
to take the evidence, de bent e#*«, of petitioner's
witnesses at Port Elizabeth in the suit instituted
by him for divoroe.
The order was granted as prayed, petitioner to
be responsible for the costs of the commission.
WILSON V. WILSON.
The Chief Justice ordered an addition to the
judgment in this case, to the effect that each side
should pay its own costs, but that the defendant
Minnaar should pay the costs of the commission,
which the Court assessed at five guineas. The
Court was of opinion that the relevant evidence
could have been taken in much less time, and con-
sidered that five guineas was sufficient costs.
SMALL V. PRAHE8.
Mr. Sohreiner moved for leave to the defendant
to sign judgment against the plaintiff by reason of
his failure to prooeed with his action alter due
notice.
The Court granted absolution from the instance
with costs, by consent.
IMAUM GASIEP V. SALIE AND ANOTHER.
Imaum or Mahometan priest — Interference
with iu peformance of his duty in the
mosque by rival priest — Possession —
Interdict.
Mr. Juta moved for an order restraining the
respondents from interfering with applicant in the
discharge of his duties as Imaum, or priest, of the
congregation worshipping in the mosque known as
that of Imaum Hadje.
Mr. Searle appeared for the respondents.
Mr. Juta read the affidavit of the applicant, who
stated that, upon the death of the late Imaum
Abdol Kariem, he was appointed Imaum of the
mosque. About a year ago he raised the first
respondent to the position of an elder of the
church The second respondent, Sheikh Abdol
Azizzi, was a native of Mecca, and applicant
allowed him to preach at the Sunday midday
services from time to time. No permanent
arrangement, however, was made, and applicant
himself conducted all the other services. Since the
return from Mecca of the second respondent, he
had again requested permission to preach, but
inasmuch as he had caused dissension and dis-
turbance among the congregation, applicant refused
to permit this. Nevertheless the said respondent
on one occasion forced open the door, and appli-
cant was now prevented from conducting the
148
services, and deprived of his just rights as Imaum
of the oongregation.
Mr. Searle read the answering affidavit of the
first respondent (Hadje Salie), who stated that he
was a regular attendant at the mosque, and that
the second respondent (Sheikh Abdol Azizzi) was
appointed Imaum of the whole congregation, but as
the applicant had been for a long time in the
service of the ohurch he was allowed to remain as
Imaum of the sick and the dead. The applicant
was to take lessens in the duties of an Imaum
from deponent and the second respondent, but only
took a few lessons. The said applicant was in-
competent to perform the duties of an Imaum, and
the sheikh always preached at the midday services.
The said applicant had no power of appointment
over the sheikh, and whatever gatieps and bilals
the said applicant appointed were appointed in seoret,
and not by the whole oongregation. The sheikh
had caused no disturbance or dissension, and the
applicant bad never conducted the services at the
mosque. The applicant had no power whatever
over the sheikh, being of much lower rank. The
applicant was deposed from office as sub-Imaum be-
cause he prevented several hundreds of worshippers
from attending the mosque on a high festival. The
mosque was open to all Moslems, and it was a
serious act to close the doors on high church days.
The members of the congregation of the said
sheikh were about 300, whilst the so-called fol-
lowers of the applicant did not number fifty. The
affidavit of Sheikh Abdol Azizzi, also read by Mr.
Searle, confirmed the affidavit of Hadje Salie, and
stated that deponent appointed applicant Imaum
of the sick and the dead only. The affidavits of
Hadje Magmoet, Abdol Burns, and other members
ef the Moslem community were also read, and bore
out the statements of the respondents.
Mr. Justice Smith : In a case of the mis-
behaviour of an Imaum, who has the power to
remove him ?
Mr. Searle said he believed the congregation had
great powers.
The Chief Justice: Has not this case been
before the Court before ?
Mr. Searle said that there were three mosques in
Chiappini-street where this one was, but he was
advised that the oase of this mosque had not been
before the Court before.
Mr. Justice Smith : Assuming the congregation
has the power, I suppose there is some ordinary
method followed ?
Mr. Searle said that there had been a regular
meeting, at which the applicant was dispossessed
of his office of sub-Imaum.
Mr. Juta read a replying affidavit of the appli-
cant, to the effect that there was only one Imaum
of the whole church, and no suoh official as
Imaum of the sick and the dead. Applicant was
the senior $atiej> in office when the late Imaum
Kariem died. At his death he appointed applicant
his successor, and seventy days after his death the
nomination was solemnly confirmed by the congre-
gation, since which time the various services at the
mosque, and the funeral services of the members
who had died, had been performed under appli-
cant's direction. The statement that he took
lessons was untrue, inasmuch as he was already
fully competent in the services of the mosque as
Imaum, at d had performed them for many years.
He appointed the various gatieps and bilals in
open congregation, and they still held office under
him. As Imaum he was custodian of the mosque,
and when respondents desired to use the mosque
as a meeting-house he refused to let them have
the key, whereupon they broke open the door.
Counsel also read the affidavits of sixteen bilals
and gatieps of the mosque, to the effect that the
applicant's affidavit was oorrect, and that he was
the true Imaum.
Mr. Searle said he had an answering affidavit to
that, but Mr. Juta objected to its being read.
Mr. Juta said that when au Imaum died he had
the right of appointing his successor, but the oon-
gregation had a right of confirmation, and the
applicant had been so appointed. For the last
three years he had oonduoted the services, and
then the gentlemen from Mecca, with several cart-
loads of Claremont Malays, who had no concern in
the matter at all, stepped in and forcibly entered
the place. The office-bearers of the mosque were
unanimous in stating that applicant was the
Imaum.
The Chief Justice suggested that both parties
might consent that the Court should appoint a
gentleman to call a meeting of the congregation
and take a vote, but
Counsel pointed out that there would be con-
siderable difficulty in deciding who were members
of the congregation.
Mr. Justice Buchanan : Is there no book of
church membership ?
Mr. Juta : I am afraid not, my lord.
Mr. Searle said that before an interdict was
granted possession had to be shown, and this the
applicant had not done. The sheikh appeared to
be the ruling official, and was apparently supported
by all the leading members of the Moslem com-
munity in Cape Town. The fact that it had been
found necessary to call in the police showed that a
very large portion of the congregation was in
favour of the sheikh as Imaum of the mosque.
Mr. Juta : We have the original key and they
have a duplicate.
The Chief Justice suggested that alternate
services should be held until the dispute was
settled.
Mr. Searle stated that his client was perfectly
willing for an action for declaration of rights to be
brought as early as possible,^
149
Abdol Soeker, a worshipper at the mosque
daring the last ten years, said that Gasiep was
never Imaum became he never preached, but
during the absence of the sheikh at Mecca he was
appointed to act in the sheikh's place.
By Mr. Juta : The sheikh was high above the
]ate Abdol Kariem and Gasiep, but that did not
prevent Kariem being Imaum. The sheikh was a
kind of bishop of the church.
Abdol Gasiep, the applicant, stated that seventy
days after the dea*h of the late Kariem he was
solemnly appointed Imaum of the mosque in full
congregation, but after he had been in office about
fourteen months difficulties, caused by the sheikh,
began to arise. He had never visited Mecca, but
was fully competent to act as Imaum, and could
read the Koran.
The Chief Justice, in giving judgment, said that
the laws of the Moslem community were so very
vague that it was difficult for the Court in these
cases to be perfectly satisfied as to the real rights
of the parties, but in the present case it did appear
that the applicant, Abdol Gasiep, was recognised as
the nominal Imaum upon the death of Kariem.
As such he would be entitled to the key of the
mosque, although it might be left with one of the
members of the congregation for the more con-
venient use of the congregation. The applicant, in
order to secure his rights, had a padlock placed
upon the door, whereupon the respondent by force
opened the door, entered the mo*que, and interfered
with the rights of the applicant as Imaum. He
appointed a man to preach for him, but before he
could ascend the pulpit the nominee of the
respondents did so, and in that way prevented the
applicant in the discharge of his duties. It struck
him that this was a oase in which some members
of the congregation, who were for the new order
of things, objected to this old applicant, who was
of the old order. Many of the members of the
community had gone to Mecca, and some who had
come from Mecca were more learned than the old
members who had remained here, and no doubt
tome of the congregation felt discontented with the
old order of things. These questions, however,
were not now before the Court, which had to look
at possession. He thought the applicant was in
possession, and therefore the Court ought to grant
an order. The order would be granted as prayed,
with costs against the respondents in the first
instance, but with leave to the respondents to
proceed by action for a declaration of rights.
[Applicant's a ttorney, W. B. Meore ; Respon-
dents' Attorney, J. C. Berrange'.]
SUPREME COURT.
MONDAY, JDNE 15.
[Before the Chief Justice (Sir J. H.de Villiebs),
Mr. Justice Smith, and Mr. Justice
Buchanan].
stegmann v. cohen, and cohen v.
8TEQMANN.
Goods sold and delivered — Action — Pro-
missory Note — Ordinance 6 of 1843,
section 19 - Malicious sequestration of
estate — Cross-action — Damages.
These two cases were taken together. Mr. Searle
and Mr. Graham appeared for Stegmann, and Mr .
Juta and Mr Castens for Cohen.
The first of these was an action brought by
Johannes Augustus Stegmaan, of New lands,
against Ebenezer Cohen, a storekeeper, of Suther-
land, for the recovery of a certain sum of money.
Between July and December of last year, the
defendant became indebted to the plaintiff in the
sum of £997 9s. 5d. for g >ods sold and delivered,
and cash advanced. On the 16th December,
1890, the defendant signed a promissory note pay-
able on April 16, 1891, for £381 5s., being portion of
the said debt. An amount of £50 18s. 5d., due from
the plaintiff to the defendant, had been deducted
by the plaintiff from his debt, and the balance now
due to the plaintiff, according to his declaration,
was £565 6s. on the open account, and £381 5s on
the promissory note. Since the issue of
the summons, the £381 5s. on the promissory
note was sued for. The suit was before the Court
on the 15th May, 1891, and provisional sentence
was granted, and a portion of the money had been
paid, goods being at present under attachment to
satisfy the remainder. An account was annexed to
the declaration showing the amounts alleged to be
due to the plaintiff. The defendant pleaded that
the plaintiff had sold to him goods to the amount
of £901 13s. 3d., the amount alleged to be due by
the plaintiff, the remainder being for cash
advanced. The defendant, however, alleged that
the £901 13s. 3d. was ewing at two years' credit,
with interest at 6 per cent., from July, 1891, to the
time of payment. The defendant also admitted
£95 168. 2d., but said the Plaintiff was indebted to
him in £50 18s. 5d. and £67, the £50 18s. 5d. for the
rent of certain premises and £ 1 7 for cart hire. Con-
sequently, according to the defendant, there was
now owing to the plaintiff the difference between
£ 1 17 18s. 5d., made up of £60 18s. 5d. and £67, which
the plaintiff disputed, and £95 16s. 2d., namely
£22 2s. 3d. The disputed items were three in number,
150
£901 18s. 3d., alleged by the defendant to be subject
to two years' credit ; £50 18s. 6d M and £17. The
second case arose out of the first. It was an action
brought by Cohen against Stegmann f or £ 1 ,000
damages for wrongful sequestration of his
estate. The declaration stated that in March,
1891, the defendant presented a petition for the
sequestration of the estate of Cohen, and that on
the 13th April the order was discharged, but in the
meantime the place of business of the defendant
was closed. There was an alternate claim, that the
defendant falsely and maliciously and without
reason procured the plaintiff's estate to be seques-
trated. The defendant's plea admitted that the
petition was granted, and that the order was dis-
charged on acoount of the non-valuation by the
defendant of certain securities alleged to be of but
trifling value. The defendant pleaded that he had
only protected his own interest, and had borne no
malice against Cohen. Counsel stated that the
plaintiff in the second case proceeded under the
Insolvent Ordinance and the common law, and the
Court would have to decide whether at the time
the petition was granted the estate was, as the
defendant pleaded, actually insolvent.
Johannes Augustus Stegmann deposed that the
transaction arose in Sutherland, to which place
witness was sent by Hamilton Ross A Co. in con-
nection with the business of Otto & Co., Suther-
land, fie agreed to take over certain goods of
Otto's, and afterwards Cohen, who was in business
at Sutherland, agreed to take the store and the
stock over, at six months' credit. It was not true
that witness granted two years' credit to Cohen.
Cohen desired to borrow £70, and when witness
refused to lend him that sum, suggested witness
should pay off the creditors in full, witness looked
into the concern, but was surprised to find that
the defendant's debts were £800. Subsequently
witness offered to take 5s. in the £ for his claim,
but defendant refused to pay even that. In
March witness gave notice to the defendant to
vacate the store, the rent not having been paid.
From what he knew of Cohen's books he considered
Cohen decidedly insolvent — at the time he pre-
HAnted the petition in insolvency against him.
By Mr. Juta : He was aware that in country
storekeeping long credit had to be given to the
farmer?, who \ aid in the wool season. He con-
sidered there were two wool seasons in the year at
Sutherland. He never asked Cohen to assign his
estate in witness's favour. What witness de-sired
was a general assignment After the order of
sequestration was granted Cohen continued Belling,
as was evidence 1 by his books. He never agreed
to pay Cohen £5 a month for the rent of a small
store at Sutherland, or indeed any sum. With
regard to the £17 for cart hire, Cohen offered him
the loan of his cart free of charge. He used the
part about eight or nine days altogether. It was
not true that at the meeting of creditors he
denied having offered to accept 5s. in the £ in
settlement of his claim.
Bzekiel Cohen gave evidence that when Steg-
mann offered the goods at six months be refnsed to
take them, whereupon Stegmann offered two years.
The usual course of business in the country was to
give fanners a year's oredit. He could not possi-
bly have got in enough money in six months to
pay Stegmann. In addition to Stegmann, he
bought goods from many other firms in Cape
Town, and was doing a good paj ing business.
Whilst Stegmann was in Sutherland he asked
witness to pay out the other creditors at 2s. 6d. in
the £, and himself at 20s. in the £, but witness
refused to nuke any such arrangement. Stegmann
and Van Eyk, his agent, at the time they advised
witness to surrender his estate, had already let a
part of the store to another person. It was not
true that witness refused Stegmann's offer to take
5s. in the £. He accepted it. The store was
closed a month under sequestration, but was
opened again in April. Before the place was
closed witness was making from £80 to £120 per
month cash, and a similar amount in oredit sales.
Since the reopening be had paid off many creditors.
He had paid off the whole off Stegmann's note for
£881 5s., and about £400 in addition, bat in con-
sequence of the sequestration proceedings business
had been exceedingly difficult. He was also run-
ning a hotel business, from which he received
amounts up to £30 per month. He had recently
sold his share in the hotel for £150.
His wife conducted a boarding-heuse at Suther-
land, but that was her concern alone. In conse-
quence of the action of Stegmann witness heard
that other creditors were going to press him, so he
called a meeting of ^creditors. He did not sell
goods while the place was under sequestration.
At present he had £800 worth of stock, and his
debts, including Mr. Stegmann's, were far less. He
was perfectly solvent.
By Mr. Searle : He admitted Stegmann had no
security, but he gave witness two years' credit all the
same. Stegmann also became security to Wilman,
Spilhaus 4 Co., Zeederberg 4 Duncan, and 6. W.
Steytler dk Co , for money owing by witness. He
kept a writ issued against him a few days, but it
was under a mistake. He was asked to give a
small parcel to Mr. Van Eyk, whom he did not see
for some days after. He did not know the parcel
contained a writ.
The Chief Justice : If he had known he might
have lost the parcel on the way.
isi
SUPREME COURT.
TUESDAY, JUNE 16.
[Before the Chief Justice (Sir J. H.DE YlLLIERS
K.C.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.]
8TSOMANN V. COHEN AND COHEN V.
STEGMANN.
The hearing of this case was resumed. Mr.
Searle and Mr. Graham appeared for Stegmann.
and Mr. Juta and Mr. Castens represented Cohen,
Carl Engelen, a storekeeper at Sutherland.
called by Mr. Juta, gave evidence that after the
sequestration of Cohen's estate he valued his
whole stock and assets, including the outstandings
and everything else. In his opinion Cohen was
perfectly solvent, and could pay all his debts,
8tegmann's included.
By Mr. Searle : He was one of the creditors of
Cohen, but was in favour of giving him time, and
had been all along. He believed Cohen's assets
were quite £160 over his liabilities. Goods were
generally sold at 100 per cent, profit at Sutherland,
and he valued the stock very low indeed. If 26 or
50 per cent, profit were realised Cohen would have
been perfectly solvent. Witness admitted that if
the books could be made to prove that Cohen ever
since he started had sold goods at cost price he
would be insolvent. At that rate nobody would
be solvent. He took the stock to be worth about
£1,400, but Stegmann offered it to witness for £700.
Gert Cloete, a farmer, to whom Cohen owed
money at the time of the sequestration, deposed
that Stegmann told him Cohen could not pay him.
Thereupon he sued Cohen and was paid. He
would not have pressed Cohen but for what
Stegmann told him.
By Mr. Searle : His brother went and asked
Stegmann what Cohen's position was, but witness
never asked Stegmann about Cohen. He was
fully satisfied with his security.
Benjamin Cohen, brother of defendant, corro-
borated the evidence of Engelen as to the value
of Cohen's stock.
Mr. Searle called Ryk le Sueur Stegmann, for-
merly bookkeeper with Otto <k Co. and afterwards
with Cohen, who stated that when the sequestra-
tion order was made he valued the stook at £700.
He considered that a pretty fair business was done
by Cohen, but as a fact whilst he was there more
money went out than came in.
By Mr. Juta : Cohen was constantly buying new
stock when witness was in his employ.
Willem Francois Maritz, an agent at Suther-
land, said that Cohen told him he would pay all
the ether creditors but Stegmann, who should not
have a penny. He told Stegmann what Cohen had
said a day or two afterwards, before the petition
in insolvency was presented. At the meeting of
creditors he heard Cohen and Stegmann talking
about 5s. in the £, tut before that, in witness's
offioe, Stegmann asked Cohen if he were still
willing to pay him 5s. in the £. Cohen said no.
In May witness attached £300 worth of goods in
the suit of Stegmann v. Cohen, and that left only
£20 worth of goods in the shop.
By Mr. Juta : He had bought the store occupied
by Cohen, but he had taken no proceedings to
oust Cohen. If Cohen were declared insolvent
the place would come to witness at once. He was
willing, however, that Cohen should continue in
possession of the store if he could manage to pay
the yearly rent of £326. If Van Eyk and witness
could get hold of the store thty intended com-
mencing a mercantile business, but if they could
find a good purchaser they would be willing to
sell the place. When Cohen told witness he
would not pay Stegmann, Cohen was in a great
rage.
J. A. Stegmann, recalled at the request of the
Court, stated that he remembered Maritz telling
him Cohen did not intend to pay him. Before that
time Cohen had made a similar statement to
witness, before the petition in insolvency. He
clearly understood from Cohen that he would not
pay witness's account, and that was the reason why
he presented the petition.
By Mr. Juta : He had said in the petition that
Cohen told him, in the presence of witnesses, that
he would not pay him, but as a matter of fact
there were no witnesses present.
Counsel having addressed the Court,
The Chief Justice delivered judgment. He Baid
that in regard to the first action, Stegmann v.
Cohen, the Court was satisfied, as to the £901
13s. 3d., that there was no binding agreement by
which the plaintiff had to wait a couple of years
for his money, such an agreement being altogether
inconsistent with the course of dealiDg and the
evidence in the case. The £50 rent, and the £17
cart-hire appeared to be mere afterthoughts on
the part of Cohen, and the Court would give
judgment in the first case for the plaintiff with
costs. In regard to the second action, Cohen v.
Stegmann, that certainly ought to have been
brought by way of claim in reconvention, and he
did not understand why a separate action
was brought and separate costs inourred*
The case had satisfied him, more than
any other, how careful the Court should
be in applying the Act of 1834,
and he mnst once more repeat that the
Court would require the clearest proof of insol-
vency before an order would be granted, because
he could well imagine that the Act might easily
be abused by persons conspiring to produce general
152
insolvency which they were unable to rrove. In
the present case, if a minute inquiry were made
nto the affairs of Mr. Cohen, he was net perfectly
clear that there wouM be insoh enoy, bat he was
fully satisfied that the defendant Stegmann had
good re eon for believing that there was insol-
vency. Judgment in the second case would be for
the defendant Stegmann, with costs.
[Stegmann's Attorneys, Messrs. Van Zyl &
Buissinne; Cohen's Attorneys, Messrs. Tredgoid
Mclntyre 4 Bisset.]
SUPREME COURT.
WEDNESDAY, JUNE 17.
[Before the Chief Justice (Sir J. H. DK VIL-
LI EBB, K.C.M.G.), Mr. Justice Smith, and
Mr. Justice BUCHANAN.]
In re WALKER V. LIQUIDATOR CAPE CENTRAL
RAILWAYS.
Costs —Counsels 1 fees — Taxation — Review —
Cases.
Sir T. Upington, Q.C., moved for an order
setting aside the reductions made in plaintiff's bill
of costs by the Taxing Officer in respect of the
fees paid to the counsel engsgrd in the case. Mr.
Sohreiner appeared for the defendant Company.
Counsel said the Court doubtless had every
reason to remember the case of Walker vs.
Liquidator Cape Central Railway heard only a
few weeks ago. The applicant in the present
matter was Mr. Buissinne, of the firm of Van Zyl
& Buissinne, attoi neys, Cape Town, who acted on
behalf of Mr. Walker in the case he brought
against the railway. The case was one of the
most important ever heard in t he Court, and the
brief probably one of the heaviest. It wan one «f
immense complication, and he hoped never to
have to deal with Fuch a one again ; indeed he
wished he had never had anything to say in it.
The briefs of leading counsel on both sides were
marked a hundred guineas, whilst those of junior
counsel were marked seventy guineas. The taxing
officer deducted fifty guineas off the fees of
leading counsel, and thirty-five guineas off those of
the juniors, and the applicant alleged that if this
were confirmed, he would be a heavy loser. He
(Sir Thomas Upington) had the greatest possible
hatred of these things because there was an idea
arising that members of the bar and side bar
were anxious to take more money than they were
entitled to ; and he thought everyone would say
so far as the bar of the country was concerned,
that their fees were of the most moderate and
reasonable character, and the bills ef costs were
taxed with great fairness to all parties. The
present taxing officer was a gentleman who was as
perfectly capable of dealing with the qaestion as
anybody that could be found, and he would ask
the Court to decide once and for all whether the
fees were not fair and legitimate.
Mr. Schreinar, on behalf of the Official Liqui-
dator of the Company, said that he was quite
willing to leave the matter in the hands of the
Court.
Counsel referred their lordships to the cases
mentioned by the Taxing Master in his report
and to the principles involved in the same.
The following were the oases : — Bdmeades v.
Mostert,and Bdmeades v. Scheepers. (Cape Argus,
14th July, 1882.)
The Chief Justice said .... "the case
illustrated how necessary it was that the Taxing
Master of the Court should exercise his judgment
and discretion in regard to every item coming
before him independently of any agreement or
understanding, which might exist between the
attorneys. He (the Chief Justioe) said nothing
here about the amount ef Counsel's fees. He
understood that the practice at all times was that
this wa* a matter absolutely within the discretion
of the Counsel himself. The Court had never
interfered in the amount of Counsel's fees because
if a Counsel w?s not satisfied with the fee marked
on his brief he could at all times decline to take
it. Counsel might say ' I am not sufficiently
advised ' unless he saw a fee of 1,000 guineas
marked on his brief, and this could not be
prevented. But it was a very different question
when fees were to be oharged against the opposite
side." And in Swarts v. Landmark (Cape Argus,
18th August, 1882), "The general principle laid
dewn was this— that the unsuccessful party should
not be asked to pay more costs than was ab-
solutely necessary for the decision of the case ;
and if the successful party desired to remunerate
his counsel over and above what he could recover
from the other side, let him do so, but the
unsuccessful party must not be compelled to pay
more than was necessary." In Spengler v. Sea
and Green Point Municipality (Cape Argus, 14th
July, 1883), " It was the duty of the State and the
Bench to bring justice home to every man's doer,
but it should not be made in certain senses
prohibitive." (After acknowledging the willing-
ness of the Bar to come to the aid of paupers) His
Lordship said : <( But there were other people
who, though not exaotly without means, yet were
not in a position to spend a large sum of money on
taking their oases into Court, and the Court ought
iftS
to be careful not to encourage anything which
would prevent that class of persons from
obtaining justice." Beaufort West Municipality
t. Merner {Cape Times, 1st September, 1882)
u the most recent decision on this
point (the reduction of Counsel's fees) was in a
case in which the fees of Queen's Counsel had
been interfered with, and it was laid down by the
Master of the Rolls that the rule was a most
valuable one that the Court would not interfere
with the decision of the Taxing Master with
respect to Counsel's fees unless some grave
■nrfcake bad been committed. He quite adopted
the views of the Master of the Rolls, and as no
grave mistake appeared to have been committed
in this case, the review must be refused with
costs."
The Chief Justice : I must confess that I was
somewhat astonished at this fee, especially after
the remark* made by the Court in previous oases.
There was a time when, as between party and
party, a fee of ten guineas would have been
considered exceptionally high, and now an objec-
tion is raised to a fee of fifty guineas, which has
been allowed as between party and party by the
Taxing Officer. It is quite clear that as far as the
personal feelings of the Court are concerned, we
should be only too glad to see counsel well re-
warded in every case in which they were engaged.
It is for the interests of the public that the best
talent in the country should be drawn to the Bar,
and one of the means of doing that is the general
knowledge that entering the Bar, leads, not only
to fame, but also to fortune. But the Court
cannot allow its personal or professional feelings
to sway in a matter where the interests of the
public are concerned. It is for the public interest
that law costs should be kept as low as possible.
I think in a country like England it has become a
public scandal that litigation has become a luxury.
The result has been that County Courts have been
created, where the fees are much lower, and are
gradually drawing away a great part of the fees
from the Higher Courts of Law where the cases
could be better dealt with. In this country also,
the tendency also undoubtedly has been— at least
since I have been on the Bench — that costs as
between party and party are om the increase. For
myself, I have always, even at the risk of perhaps
giving offence to practitioners, thought it my duty
to protect the public as much as I could. But
still there is a tendency for costs to increase, and
undoubtedly, costs at this moment are very much
higher than they were some years ago. This
may be partly owing to, no doubt, the general
increase of wealth in the country, and the general
status of living, but the fact remains. New, as I
said before, a fee of fifty guineas had been
allowed by the Taxing Master. In my opinion, as
between party and party, it is amole. I am by no
means prepared to say that counsel weuld not
have been justified in saying he would not take
less than a hundred guineas, but it does not follow
that the Court is bound to say that as between
party and party, the other side should pay those
costs. For these reasons I think this appeal ought
to be dismissed with costs.
Mr. Justice Smith said that after the decisions
in previous oases, he was astonished at the appeal
being brought.
Mr. Justice Buahanan endorsed the principle
laid down in the decisions in other oases. It
appeared to him to be so sound that there was no
reason to alter or modify it. The question was,
was the Court to interfere with the Taxing Master
unless some grave mistake had been committed ?
No such mistake had been committed, hence there
was no need for interference.*
[Attorneys for the Appellant Messrs. Van Zyl
& Buissinne — for the Respondent Company
Messrs. Bcanlen 6 Syfret.]
PETITION OF JACOBUS J. DU TOIT.
Ante-nuptial contract — Leave given to re-
gister although contract had not been
tendered for registration within prescribed
period.
Mr. Graham moved for an order to the Registrar
of Deeds to register the ante-nuptial contract
entered into by petitioner and one Anna C. du
Toit, the said contract not having been tendered
for registration within the prescribed time.
The order was granted.
IN THE ESTATE OF JACOBUS S. BOTHA.
Mr. Watermeyer moved for leave to the execu-
trix to raise a loan on mortgage of the share of
the farm Groot Rietvlei, situated in the district of
Somerset Bast, belonging to the estate, for the
purpose of satisfying certain debts.
The order was granted.
CAPE OF GOOD HOPE BANK, IN LIQUIDATION
V. TWBNTYMAN.
Company — Bank in liquidation — Act 23 of
1861, section 1 3 — Execution — In solvent
shareholder — Contributories — Past share-
holders.
Sir T. Upington moved for leave to the official
liquidators to issue a writ of execution against the
• I am indebted to Mr. J. H. Blenkin, of the Cape
Argus, for the report of the argument and judgment in
this esse.— Ed.
154
respondent for the deficiency on calls payable on
fifty shares registered in the name of Henry
Heath, of which shares respondent was the former
holder, or otherwise to place respondent's name on
the list of contributories, as former proprietor
of snch shares.— Mr. Sohreiner appeared for
the respondent.
GAPE OF GOOD HOPS BANK, IN LIQUIDATION
V. WHITTON.
Sir T. Upington made a similar application
in respect of the deficiency on seven shares regis*
tered in the name of Maurice Rabinowitz, of
which respondent was the previous holder. Mr.
Sohreiner appeared for the respondent.
It was agreed to take the two oases together.
After argument,
The Chief Justice delivered judgment. He said
that as to the first case the only question was
whether the winding-up of the bank did as a fact
amount to a process in the nature of an execution.
In his opinion it did. If the winding-up
did amount to a prooess of that character,
it was a sufficient process to justify the liquidators
in placing upon the list of contributories past
shareholders as well as present, provided that the
18th section of the Act had been complied with,
which had Veen done in the present case. The
case was one in which the Court had to deal with a
shareholder who was actually insolvent, and from
whose estate a dividend was recovered. The
dividend, however, was wholly insufficient to meet
the call on these shares, and the application was to
place upon the list the person who sold the shares
to the insolvent. It was left for the Court to say
who were contributories, and having regard to the
paramount interest of the creditors, it was dear
that the respondent should be placed upon the list
of contributories, leaving it to the liquidators to
pay out to past shareholders any funds available
in the event of a surplus — which was improbable.
In the second case, that of Whitton, the terms of
the proviso were too dear, and the judgment of
the Court would therefore be that in the first case
the application would be granted, and in the second
refused. In both cases costs would come out of
the liquidation.
SUPREME COURT.
THURSDAY, JUNE 18.
[Before the Chief Justice (Sir J. H. DB
VILLIERS), Mr. Justice Smith, and Mr.
Justice Buchanan.]
IN THE INSOLVENT ESTATE OF C. J. VILJOEN.
Id solvency — TniBtee — Farms — Title-deeds —
Mutual will— Prae-legacy — Vested interest
of heirs.
Mr. Sohreiner moved for an order requiring the
insolvent to deliver up to the sole trustee of his
estate the title deeds of certain farms in the dis-
trict of Uitenhage registered in the name of the
said Viljoen.
Sir T. Upington, Q.C., appeared for the respon-
dent, and read respondent's affidavit that under the
mutual will of himself and his late wife the farms,
which the Court was asked to deliver up to the
applicant, were given as a prse-legacy to the
children of the marriage. He was led to under-
stand that the trustee, the present applicant,
desired possession of the farms in order to sell the
property to satisfy the debts of respondent's estate,
which would be contrary to the legal rights of the
heirs under the mutual will. He was fully pre-
pared to Land over the farms to the applicant on
the conditien that he would, as trustee, recognise
the vested interest of the heirs, the children.
Mr. Sohreiner said that the trustee was Mr.
Harry Gibson, who deposed th.it he had no such
intention as was attributed to him by the insol-
vent, but would deal with the property in a legal
manner, and sell the half to which the insolvent
was entitled. If the trustee did not do his duty
the respondent clearly had his remedy at law, but
he believed that if the Court granted this applica-
tion there would be no further litigation, inasmuoh
as the trustee would do his duty.
Sir Thomas Upington said that what his client
was afraid of was a sale in insolvency, which
might be held by the Court to confer a good title
to the lands. As a matter of fact the property
was alienated, and the liquidation accounts filed, so
far back as 1862. His client had all along been
willing to lodge the deeds in the hands of the
Master, pending the issue of a friendly action.
The Chief Justice, in giving judgment, said that
the farms were registered in the name of the
respondent, and the only person now entitled to
the title deeds was the trustee. If the trustee
attempted to deal illegally with the property the
respondent, the insolvent, could protest, and even
apply to the Court for protection against any
155
illegal act. It had not been shown, however, that
the trustee had any illegal intention, and the order
would therefore be granted as prayed.
THE CAPE OP GOOD HOPE BANK, IN LIQUI-
DATION.
Company — Bank in liquidation — Confirm-
ation of accounts — Remuneration of Pro-
visional Liquidators.
Mr. Schreiner moved for certain orders upon the
third report of the official liquidators. He said
that the report had been presented, and lain the
usual time for inspection, and no objections were
raised. The first application was for the adoption
of the third report, and then the liquidators asked
for confirmation of the accounts.
The Chief Justice : What has been paid oat ?
Mr. Schreiner: 12s. 6d. in the £, my lord.
Counsel farther moved for the fixing of the re-
muneration of the provisional liquidators. When
the bank stopped payment four provisional liqui-
dators were appointed, and he had now to ask for
the fixing of the remuneration of three, Messrs.
B. R. Syfret, J. Yeoman and W. A. Currey, the
remaining one, Mr J. K. Reid, having sinoe been
appointed one of the official liquidators. These
gentlemen held office for three days, during whioh
£20,000 cash passed through their hands, and they
carried oat a great deal of important work, among
the rest the opposition to an application to appoint
separate liquidators for the Transvaal. The
liquidators recommended an allowance of twenty-five
guineas each to these three gentlemen.
The Court granted an order declaring the report
adopted, confirming the accounts, and fixing
twenty-five guineas each as the remuneration of
Messrs. Syfret, Yeoman, and Currey.
LIEBENBERG Y. VAN DEB WBSTHUIZEN.
Mr. Jnta moved to make absolute the rule nut
for the attachment of the proceeds of a sale of
goods belonging to the defendant, in satisfaction
of a judgment in this Court in the suit between
the parties.
The order was granted.
BEOINA V. GILIOME SEN.
Cattle Diseases Act—No. 2 of 1881— Con-
t invention — Horse* — (blander* — Investi-
gation Board — Isolation — Destruction
If the pen>oiis appointed under section 2 of
the Act are of opinion that animals should
be destroyed, they may have them des-
troyed themselves, or they may isolate
them, but they cannot call upon the owner
to destroy or isolate.
Mr. Schreiner apppeared for the appellant.
Mr. Giddy held a watching brief for the Crown.
This was an appeal from a sentenoe passed by
the Assistant Resident Magistrate of Swellendam,
under the provisions of the Cattle Diseases Act,
1881.
The case arose upon a summons issued at the
instance of one Paul Dunn, who complained that
two horses owned by the appellant were suffering
from glanders, and that the appellant refused to
isolate the said horses, although he was instructed
to do so by members of the Investigation Board
and by the Field-cornet of the district, as provided
by the Act. The appellant was brought before
the Magistrate on a private prosecution, found
guilty, and was fined £10. Counsel submitted
that no offence known to the law had been com-
mitted, and that no private person in the position
of Dunn had any power to summon the appellant.
The Act provided that any private prosecutor,
such as Dunn, should have suffered real injury
before he could appear before the Magistrate.
The Chief Justice, in giving judgment, said that
the only question was whether it did amount to
contravention to refuse to isolate these
horses, after Giliome had been ' warned
so to do by the persons appointed
under the *ct. As he had pointed out before,
destruction was placed on the same footing as
isolation by the Act, and therefore, if these
gentlemen had ordered the appellant to destroy the
horses, and he had not done so, he would
be liable for having contravened the Act.
In his opinion that was never intended by the
Legislature. If the persons appointed under the
second section were of opinion that the animals
should be destroyed, they might have them
destroyed themselves— which was a large power to
give them — or they might isolate them, but thev
could not call upon the owner to destroy or
isolate. They must do it at their own expense and
risk. No doubt under the first section of the Act
a person might be convicted if he had any animal
infected with certain diseases, including glanders,
but dear proof was required of the presence of the
disease. Under the seoond section, however, it
was only required that in the opinion of persons
such as those who moved against this appellant
animals were so infeoted. The present conviction
could not stand, no ottVnce having been committed.
The conviction must therefore be quashed.
[Attorneys for the Appellant, Gus. Trollip;
Attorneys for the Crown, Messrs. Reid 6 Nephew. J
156
PETITION OF CATHERINE J. M. TRUTEB.
Mr. Watermeyer moved for a rule nisi calling
upon petitioner's husband to show cause why she
shall not be admitted to sue him in forma pauperis
in an action for divorce by reason of ;his malicious
desertion.
A rule nut, returnable on July 13, was granted.
BTEYNSBUBG MILL COMPANY.
Mr. Graham moved for an order placing the con-
cern in liquidation under the Winding-up Act of
1868, and appointing an official liquidator with the
usual powers.
The order was granted and Mr. W. F. Neeseman,
of Steynsburg, appointed official liquidator ;
security of £500 to be given.
In re THE MINOB8 BOTHA.
Mr. Bearle moved for the appointment of a
curator ad litem to represent the minors in respect
of the sub-division of certain shares in the farms
Nooitgedacht and GrToenfontein, situated in the
district of Oudtshoorn.
The order was granted, and Mr. 0. M. Lind
appointed curator ad litem.
THE ESTATE OF THE LATE BAMODIBN.
Mr. Graham moved for an order to make absolute
the rule nisi authorising the Registrar of Deeds to
oanoel certain mortgage bond passed by the said
Bamodien on the 26th July, 1846, in favour of
George Apsey, hypothecating a piece of quit-rent
land situated on the Wynberg Flats.
The order was granted.
PETITION OF M. J. VAN RENSBURG AND
OTHEB8.
Mr. Joubert moved to make absolute the rale
nisi for authority to the Registrar of Deeds to
correct certain errors in deedB of transfer relating
to the farm Dassenklip, situated in the district of
Swellendam.
The order was granted.
PETITION OF HENDBIKA C. DALY.
Mr. Graham moved to make absolute the rule
nisi for authority to transfer to the executors of
the estate of the late Michael Daly certain lot of
ground, situated in the district of King William's
Town.
The order was granted.
SAVINGS BANK V. DE BEER.
Mr. Graham moved for an order giving authority
to the Sheriff to accept an offer made for the farm
Hawden, situated in the district of Peddie, the
offer being in excess of the reserve price fixed for
the sale on the 13th December, 1889.
The order was granted.
IN THE ESTATE OF THE LATE MABY
MABONEY.
Mr. Watermeyer moved for an order giving
authority to the tutor dative of the minors inter-
ested in the estate to sell and transfer their shares
of the landed property, of which the minors and
two majors are joint heirs, on condition that the
minors' portions be paid to the Master.
The matter was referred to the Master for
inquiry.
IN THE MATTES OF TEENGS V. GARLICK.
Coete — Counsel's fee — Taxation — Review.
Mr. Searle appeared for the applicant, and Mr.
Sohreiner for the respondent.
This was a matter whioh came before the Court
by way of review from a decision of the Taxing
Officer regarding a case tried during the present
term. The matter arose with reference to the
employment of junior counsel in the oase, and
with respect to a legal consultation. The amount
involved was £16 6s. 4d n of which £18 16s. 6d.
was for counsel's fee and attorney's charges in the
preparation of the brief, and £2 9s. lOd. in connec-
tion with the consultation. Counsel stated that
the fee marked on the brief was five guineas, which
had invariably been held to be reasonable by the
Court. The Taxing Officer disallowed the
amounts, on the ground that the facts of the case
were brought before the Court in the action
Levin v. Garlick (1 C.T.L.R^ 25), which was
before the Court three months ago.
Mr. Schreiner argued that the defence in the
case of Teengs v. Garlick was exactly the same as
in that of Levin v. Garlick, and the Taxing Officer
took up the position that under the exoeptional
circumstances the course he had taken was
justified.
The Chief Justice said that if the Taxing Officer
had allowed the fees in the present case
he was not prepared to aay that the Court
would have disallowed them, but a great deal must
necessarily be left to the discretion of the Taxing
Officer, who was in court when the case was tried,
and knew all the circumstances. There were ex-
ceptional circumstances in the case which would
prevent its being taken as a precedent, and that
being so, the decision of the Taxing Officer would
be upheld.
[Attorneys for the applicant, Messrs. Van Zyl
& Buissinne ; Attorneys for the respondent, C. C,
de Villiers.J
167
SUPREME COURT.
FRIDAY, JUNE ie.
[Before the Chief Justice (Sir J. H. DB VlLLlKRS),
Mr. Justice Smith, and Mr. Justice
Buchanan.]
CORONEL V. WARD AND WES8ELS.— LAURENCE
V. WABD AND WESSELS.
t
>
Diamondiferous farm — Use — Agreement —
Refusal of purchase— Cession — Assigns —
Promissory note — Cancellation of Agree-
ment — Exceptions.
Sir T. Upington Q.C., and Mr. Graham for the
plaintiff; Mr. Searle for Weasels; and Messrs.
Jnta and Jones for Ward.
This was an argument on exceptions.
Mr. Searie said the exception taken by Weasels
was this. That he excepted to the declaration in
that admitting the facts therein alleged the same
gave rise to no cause of action against him
inasmuch as the rights of prospecting and of
refusal granted to the defendant Ward were and
are incapable of oession, assignment or transfer to
any other person without his (the defendant's,
Weasels) oonsent thereto so as to give suoh person
any right of action against him (Weasels) and no
such consent is in the declaration alleged. The
declaration disclosed that the action was one
brought against Ward and Weasels by Coronal for
a declaration of rights under a certain agree-
ment. The declaration set forth that the plaintiff
Coronel was a broke* residing at Kimberley.
Weasels was a farmer, and Ward was a diamond-
digger and speculator. Weasels was the owner
of the farms Benauwdheidsfontein and Oiiphants-
rontein, and in October, 1887, Weasels gave Ward
the right, on payment of £10,000, to use the farm,
and at the same time it was agreed that Ward
should have the refusal of the purchase of the
farm for the sum of £200,000, to be paid in
manner set forth in the agreement. On the 24th
June, 1890, Ward agreed with Coronel whereby,
in consideration of the payment by the latter of a
sum of £2,600, he was to have a quarter-share in
all rights and interests in the concession made by
Weasels to Ward, ft was further agreed between
Coronel and Ward that the latter should prospect
for diamonds on the farm, and the surplus over
from the £2,600, if any, was to be divided between
Coronel and Ward ; also that a correct account
should be kept of the expenditure. The declara-
tion further stated that the plaintiff paid £600
down, and passed a promissory note for £2,000.
lien came the paragraph on which the exception
Tfil really baaed. A notice of the agreement be-
tween Coronel and Ward was duly sent to Wessels ;
but Ward now claimed that the agreement was
cancelled, on the ground that the £2,000 was not
paid on the due date ; and he further refused to
give proper information regarding the develop-
ment of the mine. There was also an agreement
that, on receipt of the sum of £175,000, Weasels
should hand over to Ward the said farms, and that
Ward should transfer certain of his rights to the
plaintiff.
Sir T. Upington said it was dear that, when
these cases came on for trial, the plaintiffs must
be prepared to lodge in court or tender to
Weasels, in case Ward did not do so,
the money required. Weasels had given rights
to Ward or his assigns. If, on the 80th
June, Ward was not prepared to pay this
money to Wessels, the plaintiffs would be entitled
to have the agreement carried out. The plaintiffs
could not enforce their rights until this £175,000
was paid, and if they could not pay it, they would
lose all their rights. Their prayer was that it
might be declared that the agreement was binding
on Ward, and that Wessels was bound to transfer
these farms to Ward on receipt of the sum of
£175,000. Surely this was a fair thing to ask of
the Court, and would not put Wessels in any diffi-
culty at all.
After further argument,
The Chief Justice said it was very desirable
that the Court should decide on the exception
raised on behalf of Weasels. In his opinion,
inasmuch as in the agreement entered into between
Ward and Wessels the assigns of Ward wen
mentioned, he (Ward) would be entitled to cede
his rights to a third person, and the cessionary
would have the same rights as Ward would have
as against Wessels. In his opinion the exception
must be overruled with costs.
Mr. Juta said in the case of Coronel v. Ward
and Wessels. The defendant Ward excepted to
the right of the plaintiff to sue and to have and
maintain this action inasmuch as the plaintiff had
ceded and transferred all his right, title and
in t erect in the Agreement of the 24th January,
1890, entered into between him and the said
defendant to the official liquidators of the Cape of
Good Hope Bank (in liquidation). Coronel was
indebted to the bank in the sum of £40,000, and
the bank held shares to the value of' £8,500 as
security,
The Chief Justice said the bank might perhaps
be made a party to the suit.
Mr. Juta had no objection to the bank being
joined in the case.
Sir T. Upington said that Coronel had a right to
sue in his own name, as he had not made a cession
of his whole right and interests to the bank.
He was quite willing that the bank should be
joined either as plaintiff or defendant,
158
The Chief Justice said in some cases a power
of attorney was given to the cessionary to sue,
and if there had been such a power of attorney in
this case, there would have been no objection to
Goronel being the sole plaintiff. The cession
appeared to him to be an out-and-out one, and
•very right as against Weasels enjoyed by Goronel
had been ceded to the bank. He thought the
proper party to sue was the bank, and the excep-
tion must be allowed, with costs. He did not think
any additional costs need be incurred. He was of
opinion that the bank should nominally be made
oo plaintiff, but the same counsel now engaged
could be employed. The exception must be
allowed, with costs.
LISCHTLY V. STRANGMANN.
Commission — Saleofhorse — Action — Decision
of Resident Magistrate — Appeal.
Mr. Schreiner for appellant ; Mr. Searle for
respondent. This was an appeal from a decision
of the Resident Magistrate of Worcester, in a case
in which appellant claimed £6 as commission for
effecting the sale of a oertain draught stallion,
named Osman Pasha, to ene Mr. W.
van der Vyver, of Stuk River, Robert-
son district, for the sum of £100.
The Magistrate decided against the appellant,
on the grounds that there was nothing in the
evidence to show that the plaintiff took part
in effecting the sale which the defendant
concluded beyond introducing the parties. From
this decision the plaintiff now appealed. After
argument, the Chief Justice said that Mr.
Schreiner had admitted that there was evidence
in support ef the Magistrate's decision. The ap-
pellant had be*»n promised a commission if he
found a purchaser for the horse for £120. If he
(the appellant) had been a licensed broker he
would have had an implied contract, and even if he
did not find a purchaser at the sum named he
would have a claim for commission, but no such
contract could be implied in a dealing between a
general dealer and a miller. It was agreed
between the parties that £6 should be paid to the
appellant if he succeeded in getting £120 for the
horse, but he was unsuccessful, and therefore was
not entitled to anything. If the appellant had
been out of pocket in connection with the matter,
he might have recovered something, but there was
no fmf 'h't Midi was tLe rase. He had been
offered £1 10s, which was no d>»ubt an admission
of liability by the respondent, but the appellant
declined to accept it. In his opinion the
Magistrate was right, and the appeal must bo dis-
missed with costs.
Their lordships concurred.
[Appellant's Attorneys, C. C. Silberbauer ;
Respondent's Attorneys, Messrs. Fairbridge A
Arderne.]
JONES V. CAUVIN AND 00.
Costs — Demand — Rule 312 — Practice —
Appeal.
Mr. Searle appeared for the appellant, and Mr.
Schreiner for the respondents.
This was an appeal from a decision of
the Resident Magistrate of Cape Town
on a question of costs. The respondents
(the plaintiffs in the Court below) sued
the appellant (the defendant in the Court
belew) for the sum of £2 7s., the price of oertain
goods sold to the defendant, including interest and
collection. On receipt of the summons the
defendant tendered the amount of his account, leas
the costs of the summons. This, however, the plain-
tiffs refused to accept. At the hearing, of
the oast the defendant admitted the debt, but
alleged that no demand had been made until issue
of the summons, and submitted that under these
circumstances he could not be held liable for costs.
It was proved at the trial that notice had been
Bent to the defendant. The Magistrate gave
judgment for the plaintiffs with costs, on the
grounds that no demand was necessary, as ail
purchases, according to the conditions of sale, were
for cash, and even if a demand weie necessary,
the sending of the notice and calling were
sufficient. From this decision the defendant
(appellant) now appealed.
Mr. Searle, in support of the appeal, contended
that the Magistrate had erred in holding that no
demand was necessary as the purchases were for
oash. There was no proof that Mr. Jones
had received the notice or any demand prior to
the summons. Counsel directed the attention of
the Court to the following oases : Hepworth v.
Dunkley (3 Juta, 400), Redlinghuys 6 Weasels
v. Jones, Cosnett A Ball (3 Juta, 250), Lesar
v. Morrison (1 Juta, 30), and 312th Rule of Court,
and submitted that under all the circumstances of
the case the appellant ought not to have been held
liable for costs.
The Court, without calling upon Mr. Schreiner
delivered judgment.
The Chief Justice said that they were of opinion
that the appeal ought to be dismissed, on the
simple grounds that the Al agisi .rate h*U fou,.d
that notice had been sent to the defendant. The
plaintiffs' clerk swore that he had posted the notice
to the defendant, and as he had not been cross-
159
examined on this point, there was virtually no
denial. The plaintiffs had done their duty in send-
'ng the notice, and they were not to be put te the
necessity of proving that the defendant had
actually received the notice. Under these circum-
stances the appeal would be dismissed, with costs
in this Court and in the Court below.
[Appellant's Attorney, J. Hamilton- Walker;
Respondents' Attorneys, C. C. Silberbauer.]
BOONZAIER V. CA8TENS.
Slander — Action for damages — Case dis-
missed — Appeal — Assistant Resident Magi-
strate's judgment reversed.
Mr. Schreiner appeared for the appellant ; the
respondent in default.
This was an appeal from a decision of the As-
sistant Resident Magistrate of Clanwilliam. The
appellant (the plaintiff in the Court below), Miss
Hester Helena Boonzaier, sued the defendant (re-
spondent) for £20 damages, alleged to have been
sustained by reason of bis having spread a false
and defamatory report about her to the effect that
she had been delivered of a child. The Assistant
Resident Magistrate dismissed the case on the
grounds that no special damage had been proved.
From this decision the appellant now appealed.
Mr. Schreiner, in support of the appeal, re-
marked that the Assistant Resident Magistrate
had clearly erred, as it was a very elementary
principle of our law that in cases of this kind it
was not necessary to prove special damage.
The Court reversed the decision of the Assistant
Resident Magistrate, and gave judgment for the
appellant for £6 damages, with costs in this Court
sad in the Court below.
[Appellant's Attorneys, Messrs. Tan Zyl &
Buissinne.]
SUPREME COURT.
TUESDAY, JUNE 23.
[Before the Chief Justice (Sir J. H. DB VlL-
LIBBS, K.C.M.G.), Mr. Justice SMITH, and
Mr. Justice BUCHANAN.]
GENERAL MOTIONS.
EXECUTORS MART QUIN V. EXECUTOR JOHN
QUIN.
Mr. Schreiner moved for re-consideration of
defendant's application f er the appointment of a
commission to take his evidence at Johannesburg.
Sir T. Upington, Q.C., appeared for the res-
pondent.
The Court granted an order for the taking of
evidence on commission as prayed, and appointed
Mr. J. G. Auret, barrister-at-law, of Johannesburg
as commissioner.
PETITION OP DAVID KNOX.
Mr. CaBtens moved for leave to sue by edictal
citation in an action against petitioner's wife for
restitution of conjugal rights.
The Court granted leave to sue by edictal
citation, returnable on the 20th November,iper8onal
service if possible, failing which one publication
inthe Scotsman and one in the Daily Telegraph.
WATSON'S EXECUTORS V. WATSON.
Sir T. Upington, Q.C., appeared for Mr. W. A #
Currey, one of the executors in the estate ef the
late Themas Watson, and moved for an order
requiring the respondent to join in an action
about to be instituted against the heirs of the
estate of the late Thomas Watson, to recover from
them the amount of call on fifty shares in the
Union Bank registered in the name of the said
estate.
Mr. Schreiner appeared for Mr. H. F. Watson.
The Court authorised the applicant, Mr. Currey,
to bring an action without the intervention of his
co-executor, Mr. Watson, the respondent to inter-
vene as co-defendant. Costs to be costs in the
cause.
PETITION OF THE SOUTH AFRICAN
AND MORTGAGE AGENCY.
LOAN
Mr. Tredgold moved for leave to sue by edictal
citation, in an action against one Christian H. J.
Bruhns, for recovery of a sum of money due under
a mortgage bond.
The Court granted the order as prayed, citation
returnable on the first day of next term.
PETITION OF EMMA WOODMAN.
Mr. Graham moved for leave to sue in forma
pauperis in an action for damages against one J.
B. Robinson.
The matter was referred to counsel for inquiry.
CORONEL V. WARD AND WES8ELS, AND
LAWRENCE V. WARD AND WESSELS.
Sir T. Upington, Q.C., Mr. Solomon, Q.C., and
Mr. T. L. Graham appeared for the plaintiffs ; Mr.
Juta and Mr. Jones for Ward, and Mr. Searle for
Weasels.
The two oases were taken together by consent
of the parties.
160
Sir T. UpiDgton, in opening the oase, said that a
good many of the facts of the case had been under
the consideration of the Court in connection with
certain exceptions which were very recently heard.
The case at first sight appeared to be of a some-
what complicated nature, mainly arising from the
number of documents that were necessary to be
referred te in connection with it, and the amount
in dispute was of course of considerable magnitude,
but he thought that if the Court would allow him
to refer to the documents a little more in detail
than was usually the case he should be able to
reduce the issues to very simple points. It
appeared that by an agreement which was entered
into by Mr. Weasels, sen., who resided at Welling-
ton, on the 28th October, 1887, Mr. Wessels agreed
that Mr. Ward, his co-defendant in the
present suit, who resided at Beaconsfield,
should have the refusal of certain farms
(Oliphantsfontein and Benauwdhoutfontein) in
Griqualand West for a period of twelve months
from November, 1887. The purchase price of the
farms was fixed at £200,000. It was provided that
during the twelve months Ward had the refusal of
the farms he should have the sole and absolute
right to prospect and search for diamonds or other
precious stones upon the farms, and develope any
mine or mines he might discover on the farms. By
an agreement entered into on the 18th of Ootober,
1888, the period for exercising the option of pur-
chase was extended until the 1st of May, 1889. By
a further agreement, entered into on the 9th
February, 1889, the time was extended to the 1st
February, 1890. It was provided that Ward
should pass his promissory note for £5,000 for such
further extension from May 1, 1889, and that in
case the money was not paid the agreement should
be considered at an end. Subsequently, on the
25th of October, 1889, the period for refusal was
extended to the 3Cth of September, 1890, and a
further and final agreement was entered into on
January 10, 1890. That was an agreement by
which Mr. Wessels agreed to a further extension
of eighteen months, to the 1st of July, 1891. It
was agreed that Wessels should cancel all
previous notes and agreements, and that Ward
should pay for the further extension £3,(00
cash and £2,000 by way of promissory notes pay-
able in July, 1890. An agreement was formally
drawn up on January 24, 1890, by which the de-
fendant Ward agreed in writing with the plaintiff
Lawrence whereby, in consideration of Lawrence
paying £2,500 to Ward, he ceded to him ene-fouth
share in the rights and privileges he had then, he
having already ceded one-fourth share to one
Coronel. The answer Ward gave to that part of
the case was that, as to the payment of £2,500 and
the previous cession to Coronel, he denied those
facts. In the agreement between Ward and
Lawrence the sale to Coronel was reoegnised. That
was Lawrence's case, in respect to which Ward
replied that by the terms ef an agreement of the
10th January, 1890, he was to pay to Wessels
£10,000 by the 16th January. Ward was unable
to pay the money, and as a result of negotiations
entered into with the plaintiffs it was agreed that
they should receive each one- fourth share in the
whole of the rights possessed by Ward in consider-
ation of the payment of £5,000. Coronel and
Lawrence were each to pay £1,500 in cash, and the
other £2,000 at a date which was fixed in the
month of July, 1890, Coronel agreeing to pay the
£2,000 in full, and signing a note to that
effect. The allegation on the defendants 1 pleadings
set out that the note fell due on the
16th July, 1890, and was renewed, but that on the
date fixed in the renewal bill Ward was unable to
meet it, whereupon Weasels declined to renew
further, and the agreement between Wessels and
Ward was accordingly cancelled by oensent. The
issues which appeared to him to be raised were
these : In the first place, it being clear that as far
as Lawrence was concerned he entered into an
agreement and paid £2,500, oould any oase be set
against Lawrenoe which was not based upon his
contract; secondly, did Lawrence or did he not
pay £2,500 ; thirdly, if he did, had anything sub-
sequently occurred which was due notice to
Wessels that Lawrence was a party to this agree-
ment ; fourthly, if so, had Weasels any right
whatever to cancel this contract upon Ward's
failure ; and fifthly, did he so cancel it ?
Evidence was then called.
The plaintiff, William Lawrence, examined by
Sir T. Upington, said that he now resided in
Pretoria, where he was manager of the Transvaal
Loan and Mortgage Company. In Deoexnher,
1889, and for some time subsequently, he* was
manager in Kimberley of the Cape of Good Hope
Bank. He remembered that in December, 1889,
Ward spoke to him outside the bank
with regard to the Wesselten property,
of which witness knew he held the
refusal. He informed witness then that his term
would expire on the 81st December, and said he
wished to raise £5,000 to get an extension of the
refusal for another nine months. The result of
the matter was that he discussed the whole thing
with Mr. Coronel. Subsequently, he entered into
an agreement with Ward, on the 24th January,
1890. He had not seen anything, in the interven-
ing period, of Mr. Marais, the general agent of Mr.
Wessels. An arrangement was made to meet Mr.
Marais, but before that took place Mr. Coronel
said he would like to look over the property, and
they all drove over it one Saturday afternoon,
Coronel and Ward meeting at the latter's house.
Under the agreement the sum of £2,500 was to be
paid by witness, and was paid in full, in terms of
the contract. He knew nothing of any collateral
161
agreement, nor of any other agreement rove the
one of January 24, 1890. He had signed no other
agreement. His liability finished when he paid
hii money, and had ne liability whatever npon
Coroners promissory note. In addition to the
£2,500, he paid £3 per month as his pro rata share
of the rent of certain machinery on the mine, and
also £25 to Mr. Goodchild, also as a pro rata share
of the fee for making a valuation. Coronel also
paid £25 to Goodchild. After the agreement was
signed he called upon Mr. Marais, the general
agent ef Mr. Weasels, at his house upon the
property. That was at the commencement of
February, 1890, and when the call was
made the agreement between himself and
Ward and Coronel was discussed. He
said to Marais that he supposed the latter knew
that himself and Coronel had an interest in the
property with Ward, and Marais said yes, that he
knew all about it. He then asked Marais for the
diagrams of the property, and Marais said he had
not got them. Witness subsequently found that
the diagrams were at Bloemfontein, from which
place he got oopies. Marais asked witness what
the parties to the agreement were going to do with
the property, whereupon witness replied that it was
intended to work the Oliphantsf ontein mine. Soon
afterwards work was started under-thc supervision
of Ward, and witness went down and stayed on
the property seven or eight days, in order to form
an opinion as to the worth of the property. Wit-
ness left Kimberley on the 18th of June, 1890, for
Pretoria, where he had been since. When he left
Ward was ill, and work on the mine had practic-
ally ceased. Witness had before that made some
efforts to dispose of the property in London.
Before leaving he called on Ward, and asked him
from time to time to inform witness of how things
were going on, and he promised to do so. He was
not made aware, until October, 1890, that Corcnel
had obtained any renewal of his note, and never
had felt or accepted the slightest responsibility
npon CoroneTs note. Since the time of his
leaving Kimberley he had never been informed
by Ward of the finding of any diamonds in the
mine.
C ress examined by Mr. Juta; Coronel had a
large account at the bank of whioh witness was
manager. He introduced Coronel to Ward, and he
and Corenel agreed to raise £6,000 on condition
that each received one quarter-share in the rights
of Ward. The bank was to advance Coronel a sum
of money upon his account, and then the question
arose as to whether Marais would take £8,000 in
cash and £2,000 in a note by i Coronel. He had
nothing to do with that personally. It was a
matter between Coronel and Ward, but he knew it
was being done. The De Beer's Company had a
large account at the Cape of Good Hope Bank.
He was not aware that he oould not appear publicly
Y
in the transaction. He was not aware that if De
Beer's had become aware that he was interested in
another diamond-mine he would have, been hauled
over the ooals, or that De Beer's would in such an
event have withdrawn their large account. That
oould not have weighed with him under any cir-
cumstances, because at that time he was going to
leave the Cape of Good Hope Bank. He was not
aware that in Colonel's agreement there was no
mention of his (witness's) name. If Mr. Ward
were to say that his name was kept out purposely
he would deny it. If Mr. Ward swore that the
promissory note was signed by Coronel simply to
keep out witness's name from the transaction,
he would swear that was not the case.
He had nothing whatever to do with Coronel's
promissory note, which was no obligation of his.
As manager of the bank, witness allowed Coronel
to overdraw his account. The £8,000 was paid to
Ward when the bank allowed the overdraft. The
£8,000 cash and the £2,000 on the promissory note
represented the £5,000 whioh he and Coronel
agreed to pay for two fourth-shares of Ward's
rights in the mine. He paid Coronel his £1,600
on January 24, 1890, by cheque. He had not yet
paid the remaining £1,000, but Coronel had a
private arrangement of his own with Ward*
Ward had received witness's full share of £2,500,
witness having borrowed £1,000 from Coronel in
order to complete the payment. He borrowed the
£1,000 from Coronel on January 16, 1890. There
was only a verbal arrangement, and Ward was not
present when it was made. Witness arranged it
in the Kimberley Club. Coronel then agreed to
make up the full amount due from witness, who
was to have no liability on the promissory note.
If Coronel said he was liable on the note he would
state that it was not so. On the 26th of June,
1890, he wrote to Ward stating that as he had not
sold his interest he could not pay anything to
Marais, but he thought Coronel should get the bill
held over for a time. Ward wrote him a letter
dated the 80th June, but he oould not produoe it*
He believed it had been destroyed. He oould
not say what the letter was about. He oould
not say if Ward in the letter asked him to
provide for the bill, but such might have been
the case. About that time he wrote to Ward
that he would not take less than £4,000 for
his share. He knew that Coronel's bill fell due
in July, and he had been communicated with by
Ward on the subject, but he did not reply to
Ward, although he oould then have paid £1,000.
If Coronel had then asked him f er the money he
should have paid it. Ward wrote him on the 15th
of September to the effect that unless the bill lor
£2,000 was met when it fell due — a renewal having
been obtained — Weasels would not renew again.
In October Ward wrote him that unless the bill
signed by Coronel was met by the 16th of that
162
month he should hold him liable, and cancel, to all
intents and purposes, the agreement in which
witness was interested. To that letter he sent no
answer, although he was then in a position to pay
the £1,000. He did not even communicate with
Goronel on the matter, and he never communi-
cated with Ward until the Wesselton Mine was
discovered. Ward had given him to understand
that the agreement in which he was interested was
forfeited, but he took no notice, knowing that
Ward could not forfeit it. It was never agreed
that witness and Coronel, or witness alone, should
advance £1,000 for the working expenses of the
mine. Ward was to work the mine. The raising
of the money was Ward's business, not his. Ward
told him that he had simply to work the mine, and
it would pay itself as he went along. Ward
banked with the Cape of Good Hope Bank,
where his aocount was overdrawn, but he
had securities against the overdraft. He
had heard that Ward possessed a lien on
certain claims in the Du Toit's Pan Mine, but it
was never agreed that upon the security of those
claims witness should advanoe £1,000 for working
expenses of the mine. Ward informed him that
the Mining Board owed him a sum of money upon
an action, and that he was waiting for that in order
to work the mine. In the meantime, however, it
was not agreed that witness should advance any
money for working expenses. He did not answer
Ward's letters of September and October, for the
reason that he never for one moment recognised
any liability upon Coroners promissory note. He
took legal opinion in Pretoria, and was quite con-
tent to rest upon his contract* The agreement
with Coronel was that the latter should ask witness
for the money, and if Coronel had asked for the
money in September last witness could easily have
paid it, and would have done. He knew that
Coronel had not paid Ward the £2,000, and yet,
knowing that, he did not choose to communicate
with Coronel. On the 14th January, 1891, having
heard of the discovery of the Wesselton Mine, he
Wrote to Ward asking him to put the property in
his bands for Bale. In February, Ward wrote to
him that the agreement in which witness was
interested had become null and void. Witness had
sold hie interest in the mine for £5,000, of which
be had received £2,600, and was to receive £2,500
mere when that case was over. He had sold to a
Mr. Imroth, in February this year, and Mr. Imroth
was paying all legal oharges in connection with
witness's interest. The sale to Imroth had been
due to a suggestion by Coronel.
Cross-examined by Mr. Searle : He only met Mr.
Marais once. His memory was not at fault about the
date, which was long before June, 1890. He knew that
because he left Kimberley in June, and he saw
Marais long before he left Kimberley. Marais
was mistaken ; if he said the interview only lasted
five minutes he was wrong. It lasted fifteen
or twenty minutes. He saw Marais in February.
He did not atrsume when he saw Maiais that the
latter knew nothing of the agreement to which
witness was a party, for the simple reason that he
knew Marais knew all about it. He knew that
because Coronel told him, not of his own know-
ledge. He did not know as a fact that Marais
never transacted any important business without
consulting Weasels. He knew that Marais and
Ward went down to Wellington to get from
Wessels an extension of time, in which witness
was to have an interest. He neverj loommunioated
with Marais or Wessels after the interview with
the latter on the farm. He did not suppose that
Mr. Wessels was going to let the refusal run on
for ever and ever. He knew that by a certain
time a certain sum had to be paid. That money
was not paid, but he took no action. It was not
that he let the thing slide. He simply rested on
his oontract, and was satisfied with his position.
He had heard since that other people claimed an
interest in the property.
Re-examined by Sir T. TTpington : Coronel and
he paid £25 between them as a share of the
expenses of the journey of Marais and Ward to see
Wessels at Wellington. When the promissory
note fell due the only notice he reoeivedwas in the
Bhape of the letter from Ward.
Mr. Searle : Mr. Ward handed to Mr. Marais a
promissory note signed by Coronel and endorsed
by Ward.
The plaintiff, Solomon Hyam Coronel, examined
by Mr. Solomon, Q.C., deposed that he was a
broker living at Johannesburg, but in December,
1889, resided in Kimberley. He was a customer at
the Cape of Good Hope Bank, where he kept a
large account. He remembered that in January,
1890, Lawrence spoke to him about the Wesselton
property, and Ward afterwards came and spoke to
him on the subject. Afterwards, at Ward's
request, he met Marais at Ward's house. When
Ward had explained the matter to him he said
that the further refusal for nine months was too
little, and that it should be got for two years. He
also said that the purchase price of £200,000 was
unduly large, and should be lowered to £160,000.
Ward agreed to let Lawrence and witness each
have a quarter-share in the property
for £6,000. As the result of negotiations
with Marais, the latter agreed to an ex-
tension of time for eighteen months, and that
the purchase price should be £176,000. The first
arrangement was that Lawrence and he should pay
£2,000 oash and £3,000 on a note, but Ward was
not satisfied with that, and in the end Lawrence
and he agreed to pay £8,000 cash and £2,000 on a
note, and he was almost sure that when Ward was
handed the £8,000 in witness's office Marais was
also present That was on the 16th January, 1890,
163
bat he did not go and inspect the property then.
The note for £2,090 fell due in July, 1890, and was
then renewed for £2,080, with interest at 6 per cent
Afterwards Ward asked him for the money, and he
promised to try and find it, but at the same time
stuck to it that his right did not expire till July,
1891. In the end witness did not meet the bill.
In November, 1890, when a diamond was dis-
covered on what was now the Wesselton Mine, he
went to Ward and said that it was strange he had not
been told of the find. Ward then replied that
witness was oat of the thing altogether, because he
had not paid the note for £2,000 which he had
signed. Witness said that was very hard, where-
upon Ward replied that witness could " stand in "
a quarter of his (Ward's) share. Witness said he
did not want that, but would maintain his
own interest in the mine. He never for one
moment agreed to oanoel the agreement. When
he went to Johannesburg, he asked Ward to keep
him posted how things were going, and he
promised to do se, but did not. It was arranged
between himself and Lawrence that witness should
pay £2,500 in full settlement for Lawrence's
quarter-share. Afterwards witness oeded his
right in the mine to the liquidators of the Gape
of Good Hope Bank, to which institution he was
a debtor for £40,000. When Ward heard of that,
he said witness should have gene to him, and he
would have given him more than £40,000 for his
share.
Witness, cross-examined by Mr. Juta, stated
that Mr. Lawrence, late manager of the Kim-
berley branch of the Gape of Good Hope Bank,
advanced £3,000 of the bank's money to his
(witness's) account. He could not tell why
Lawrence's name did nqjt appear in the agreement.
He did not remember telling Mr. Lipp that
Lawrence was liable for half the amount of the
promissory note. He never spoke to Armstrong
on the subject. He knew that if the note was net
met when it became due the concession would
lapse. Armstrong never came to him about the
matter. He knew that Armstrong was working
with Vizettelly. He did not remember asking Arm-
strong, after the latter's return from England, how
the flotation was getting on. He tried to get Mr.
Lipp to advance the £2,000 and take his (witness's)
interest in the concession. After he had com-
promised with the liquidators of the Gape of Good
Hope Bank Ward told him that he would have
given him £40,000 for his share. He left for the
Transvaal early in December last, and in February
he communicated with the bank.
Cross-examined by Mr. Searle : He saw Marais
in December and remembered a conversation
between Marais, Ward, and himself about renewing
the promissory note. He (witness) first suggested the
purchase price of £175,000. He did not remember
Ward saying that if the matter went through
Wessels would reduce the price by £25,000. He
saw Marais again, but did not know if he had gone
down to see Wessels. He received a notice that
the note had been protested, but he did not
remember Marais telling him that Wessels only
knew Ward in the matter of the concession.
By the Gourt : Neither Ward nor Marais ever
told him that if the matter fell through he would
get back his money.
Mr. William Wells, examined by Mr. Solomon,
Q.G., stated that he had known Mr. Ward for the
past eight or nine years. He remembered a con-
versation which took place between himself and
Ward in February last. Ward asked him to wire
to Lawrence for the refusal of his share in the
concession. Witness told "Ward that there was no
use in doing so, as Lawrence had already given the
refusal.
Gross-examined: He could not remember the
exact date of the conversation, but he was certain
as to its substance.
Sir T. Upington, Q.G., then read the corres-
pondence, and clesed the plaintiffs' case.
Mr. Ward, examined by Mr. Juta, stated that in
January, 1890, £5,000 was to have been paid to
Wessels. He was introduced to Goronel by
Lawrence. He subsequently had a conversation
with Goronel about the concession, and the latter
said that if Lawrence advanced £1,000 he
(Goronel) would stand in too. Lawrence's name
was not mentioned in the agreements, because the
De Beer's Company kept their account in the Gape
of Good Hope Bank, and if it were known that
the manager was interested in outside matters he
would probably lose his post. Goronel was to
give a promissory note for £2,000, so that
Lawrence's name should be kept out of the trans-
action. Lawrence instructed the attorneys to
draw up the agreements. When the note was
coming due he wrote to Goronel, telling him that
if it were not met the concession would lapse. In
consequence of a conversation which he had with
Mr. Lipp, he came down to Cape Town
and saw the liquidators of the Cape of Good Hope
Bank, but they refused to advance him the £2,000,
After his return to Kimberley he saw Mr. Marais.
and told him that he (witness) would be able to
get the £2,000. Marais then told him that he was
too late, as the concession had lapsed, and that Mr.
Haarhoff had been to him with an offer from the
De Beer's Company. Mr. Marais, however, subse-
quently told him that if the purohase price was
increased, he (witness) might be able to get a new
concession from Wessels.
Witness's examination had net concluded when
the Gourt rose.
164
SUPREME COURT.
WEDNESDAY, JUKE «4.
Before the Chief Justice (Sir J. H. De VlLLlEBS)
Mr. Justice SMITH, and Mr. Justioe
Buchanan.
OOBONBL V. WABD AND WE88EL8, AND LAW-
BBNGB V. WABD AND WB8SBLS.
The hearing of this case was resumed. The
plaintiffs were represented by Sir T. Upington,
Q.C, Mr. Solomon, Q.G , and Mr. T. L. Graham ;
the defendant Ward by Mr. Juta and Mr. Jones;
and the defendant Weasels by Mr. Searle.
The defendant Ward's examination, continued by
Mr. Juta : Before the meeting with Marais he had
made several endeavours to get the money, and had
offered an eighth of the whole concession for
£2,000. He had approached the Messrs. Armstrong
and a Mr. Gross, the latter of whom promised him
£2,000, but did not send it. Later he offered the
whole concession for £2,000, with the exception of
a small interest for himself. He did that because
he thought he should lose the concession unless he
got the £2,000. After the interview with Marais
he made certain offers. Between April and Novem-
ber he was very ill, his life being several times
despaired of. He never left the house from April
to the end of October. In December, 1890, a new
memorandum was drawn up, by which the pur-
chase price of the mine should be £200,000. He
did not acquaint Goronel or Lawrenoe with that
fact. He considered they were out of the whole
thing. Marais said at the time that he could not
grant an extension without consulting Weasels. In
January Mr. Peter Weasels, son of the defendant
Weasels, came to Kimberley, and on the 12th
January Marais wrote to him that he would accept
the renewal of his promissory note until March,
the purchase price of the mine to be £200,000
instead of £175,000. Soon after he went
to see Mr. J. J. Weasels, with Marais.
An interview took place, at which the members of
the Weasels family were present. Weasels said
that unless witness could give him more money
the concession would end. He wanted half of
whatever profit witness made out of the mine.
The result was that he was to pay £300,000 for the
farm. When he handed his own promisory note
he got that of Coronel's back again. If he had not
entered into the fresh agreement, the whole con-
cession would have been lost. He meant by that
that Mr. Weasels would have compelled him to
give it up. He had no choice in the matter.
The Wessels had a high opinion of the mine,
whioh they thought was worth a million of money.
He knew that if he could gain time he could develop
the mine and make more money out of it After-
wards he saw Goronel, bat it was untrue that
he ever told Goronel he would give him
£40,000 for his share. He had not at that
time forty pence. Everyone was suing him,
especially oertain people. The idea that he
offered Goronel £40,000 was simply ridiculous.
He would have had to give £40,000 for the £2,000
if Marais had pressed him for the cash at once.
He never mentioned £40,000 to Goronel. He had
heard the evidence of Wells. He was passing by
the door with some diamonds from the Premier
Mine. Wells said that I m roth had purchased the
share of Lawrence, and witness replied that he
had heard something to that effect. Goronel was
present when some money was negotiated for
Marais, and said nothing at all about any interest
he held. As far as possible, he endeavoured to
keep back from everybody the fact that Goronel
had an interest in the mine at all. He did not
know if Marais knew that Goronel and Lawrence
had a share in the mine. In September he wrote
to Lawrenoe asking him to raise £200 or £300, but
that was in order to work a small mine in the
Free State. There was a mistake with regard to
names. The small mine in the Free State was the
Wesselton Mine, and the mine where recently the
rich finds were made was the Premier Mine.
Whilst he was ill he sent Marais to Goronel for
money, but the latter did not seem anxious to
meet him and said he had no money.
By Mr. Searle : Mr. Marais came to him in
October, when the bill was maturing. When he
came back and said Goronel had not the
money, Marais told witness he would lose his con-
cession. It was then arranged that witness should
have an extension till December. That was
because Gross was in London, and had promised to
send witness £2,000. Marais after that came every
Monday morning for the money. He expected the
money from Gross up to January. On one occasion
he Bent Lawrenoe to Marais for diagrams of the
property. That was the only time, as far as he
knew, that Lawrenoe and Marais met. Goronel,
Lawrenoe, and himself were never together on
any one occasion. In witness's presence, Goronel
never said to Marais that he had an interest in the
mine.
By Sir T. Upington: The £176,000 agreement
was considered as cancelled when the bill of
Goronel was not paid. He had no writing
from Marais to prove the cancellation of
the agreement. There was no necessity for
such writing, the cancellation having been verbal.
There was no document showing the extension of
time from October, 1890, to December, 1890, the
arrangement with Marais having been verbal. He
meant to say that when he received a letter from
Marais, in January, 1891, the agreement to July,
1891, had been cancelled. He first went into ooou,-
105
nation of the land upon which the mine* were in
1886 or 1887. During the whole of the time
except when he was ill, he continued working at
the mine. When he was ill Ooronel and Lawrence
promised to pay the wages of a man to look after
the mine, hut they paid one week and then stopped.
After November, 1890, he gave out four con-
cessions to the Armstrongs, Clarkson and Kimball,
and Rouaeouw and Wallater. Those concessions
would end at the close of the present month.
From January 20 to June 19, 1891, he gave the
right of prospecting to Caprisous, the prospector
who found the mine. He decidedly differed from
Coronel when he said that Marais, Coronel, and
himself ever discussed the latter's interest in the
mine, !■«*«■ took down no terms in writing-
The expression, " taken down by Mr. Marais,"
meant that Marais took down the conditions to
Weasels at Wellington. There was a considerable
correspondence with Vizetelly in London, and
Lawrence assisted in carrying on that corre-
spondence under witness's dictation daring the
time of his illness. The only thing
Marais knew was that Lawrence and Coronel
were assisting witness to find the money.
The terms upon which:that money was f onnd was wit-
ness's business, not Marais'. He admitted that when
he saw Wells and the latter referred to Lawrence's
claim he did not at once deny that any such claim
existed. He could give no reason why he did not
deny it, but he did not. The meeting between
Marais and Coronel was simply a matter of intro-
duction. He had to introduce Coronel to Marais,
bat they did not discuss matters at all. He simply
said to Marais that Lawrence and Coronel were
helping him with money, but he was not sure
if Lawrence was specifically mentioned by
name. The introduction took place in witness's
house, and its only object was to show Marais that
there was really a person in existence who would
lend him the money. At one time he offered the
whole concession for £2,000, providing a sixth of
the profits were given him. When he met Lloyd
the latter knew that Lawrence had to find theimoney
he owed. He offered an agreement to Lloyd, whioh
he had no objection to show to the Chief Justice,
bat he would not show it to counsel in the present
delicate state of affairs. He saw Lipp, the
manager of the Kimberley branch of the Cape of
Good Hope Bank, in November last about the
business. In February, 1891, the business was
introduced to Colonel North, but he answered that
he was only dealing in nitrates. The
people in Europe did not refuse to take
up the property unless there was an
extension of time. At the time of the agreement
with Lloyd the agreement with Wessels
had not been cancelled. Diamonds had been
found at the mine. He had disposed of some, but
bad rendered no account to either Lawrence or
Coronel. He had kept an account, however. The
mine was not so payable, he had said upon oath, as
Bultfontein er Du Toit's Pan, but money could be
made out of it.
Re-examined by Mr. Juta : The extension from
October to December, 1890, had been purely by the
kindness of Marais, witness then expecting money
from Cross. Marais knew perfectly well that
witness did not want to lose the concession. There
had been constant renewals of the £5,000 since
1886 or 1887.
By Mr. Searle : Marais did not know that
Coronel and Lawrence helped to pay the expenses
of the journey to Wellington. It was not likely
that he was going to let Marais know of his
poverty. No conditions were ever taken down in
writing before Marais.
By the Court : The agreement of the 10th
February, 1891, was in force if witness paid his
promissory note on June 80. There was a former
document in existence, by whioh, unless witness
paid the £2,000 by March 81, 1891, the concession
ceased, but that document was cancelled by the
agreement of February 10, 1891. The latter
agreement cancelled all previous notes. He had
all along believed the mine would give good finds,
and he would have given almost anything before
losing the concession. He had not considered that
he could cancel the agreement with Coronel and
Lawrence without repaying them the £3,000. He
was always willing to repay the money, if he
had it. He had paid Wessels £8,000, and had
spent £7,000 in working the mine. When Wessels
said that the agreement would be cancelled he did
not tender witness the £8,000 he had paid. The
promissory note was to be given by Coronel.
Lawrence's name was to be kept out of the trans-
action. He was bank manager, and in that capa-
city would allow Coronel's account to be overdrawn.
The real reason, however, was because if
Lawrenoe's name appeared De Beer's would
approach the bank and perhaps withdraw their
account. De Beer's Company greatly objected to
anyone who had anything to do with the company
interfering in other mining ventures. When he
went to Mr. Rhodes and asked for some debris-
washing it was refused him because of his connec-
tion with the mine. He was certain that in any
eveut he would have to pay £800,000 or lose the
mine. The Wessels family had been offered
£250,000 for the mine, he believed by De Beer's
themselves.
Mr. Solomon : There is not a word of truth in
that.
Charles Lipp, the present agent of the Cape of
Good Hope Bank liquidators at Kimberley, gave
evidence, examined by Mr. Juta, that he knew
Coronel, and made certain investigations regarding
the £2,000 promissory note given by him. The
impression oonveved to his mind was that unless
166
the bill was met the concession in whioh Coronel
was interested would drop. Ward went to Gape
Town to see the liquidators about the bill, and
when his negotiations failed witness considered the
thing at an end. Coronel had told witness that by
an understanding between Coronel and Lawrence,
the latter was responsible for £1,000 of the £2,000
due on Coronel's note.
Cross-examined by Mr. Solomon : In February,
1891, he considered the matter was revived, and it
was then his impression that Coronel was still
interested.
George Shearer Armstrong, examined by Mr.
Juta : In 1 890 he went to England in connection
with these concessions. He saw Coronel on his
return in the Diamond-market in July, 1890.
Coronel came and introduced himself as one
interested in Ward a concession, and asked witness
how things were progressing. He asked if the
money from England would be forthcoming, and
witness said he had great hopes that it would.
Coronel said that Mr. Lawrenoe owed half of the
bill, but he had no hope that Lawrence would
assist him as be also was in a fix. He saw Marais
about the end of July or the beginning of August,
and a month afterwards told Coronel what Marais
had said. He told Coronel that Marais had stated
that unless the bill for £2,000 was paid in October
it was not to be renewed, and Coronel then said he
could not pay the money, nor could Lawrenoe.
Coronel said he could not help it if the
concession lapsed, and that he looked
on the thing as worthless. On December 22,
1890, Ward offered to pay £2,000 to Marais,
but the latter said it was too late then and he
could not take it, he having reported the discovery
of the new mine to Weasels. Ward could
then get the £2,000 at any moment. He
was in a great state of mind about the
matter, he having been interested in the
mine since 1887. The day before the £2,000 was
offered by Ward Mr Haarhoff had seen Marais on
behalf of Mr. Rhodes.
Cross-examined by Mr. Solomon: He had a
share of Ward's share of the mine. When Coro-
nel and Lawrence obtained a share in the concession
witness was in England, but Ward wrote and told
him that two persons had offered to lend him
money, but he mentioned no names. He was after-
wards informed that as Lawrence had left the
bank there was no need for further secrecy.
Coronel told witness Lawrence was liable for half
the amount of the bill. He considered the agree-
ment which ended July 1, 1891, was cancelled, and
it was not true that up to December 22, 1890, Ward
worked as though the agreement were still in
existence.
Petrus Harmsen Marais, son-in-law of Mr.
Weseels, examined by Mr. Searle : He had repre-
sented Weasels iu Kimberley for some yean. All
agreements, however, were signed by Weasels,
whom he consulted upon all important points. In
December, 1889, a promissory note was falling
due by Ward. He went to Ward's house
in that month, and found Coronel there.
He was introduced to Coronel, and then Ward
said that he found great difficulty in floating the
company owing to Weasels insisting upon fifty
claims in the mine. Ward said that Weasels had
promised him £25,000 if he sold the farm for
£200,000. Lawrence's name was not mentioned on
that occasion, nor did Coronel suggest that he held
an interest in the mine, or that the purchase price
should be reduced to £175,000. Witness took
down no conditions at the interview. On the 16th
January, 1890, Ward gave witness £3,000 in the
Hon. W. Ross's office, but Coronel was not present.
The same day he met Coronel, who asked if
Weseels would recognise him if he went in the
concession with Ward. He replied that Weasels
only knew Ward in the matter. He only saw
Lawrence on one occasion, when he asked witness
for some diagrams. He had seen Coronel in Kim-
berley, and the latter told him he could not pay
his promissory note of £2,000, he not having any
money, and the share market being very depressed.
Witness further stated that after the note had
been protested, Ward came te see him and said
that Coronel had left him in the lurch, but that
Mr. Cross, who was then in London, would find
the money. Subsequently, Mr. Haarhoff came
to see him (witness) with an offer from Mr.
Rhodes. On the next day Ward and Arm-
strong came to him again about the matter,
and he (witness) told them that they were too
late Ward seemed quite surprised, and said,
surely Mr. Weasels will not refuse to renew
the concession ? Witness then suggested that he
(Ward) should make Weasels a higher effer and
that possibly the latter would extend the period of
the concession. Ward afterwards offered €200,000.
This was accepted, and the concession was renewed.
He returned Ward the old promissory note for
£2,000, and accepted a new note for £2,060.
Witness considered that he had a perfect right to
cancel the agreement. He had several better
offers since for the farms.
Cross-examined by Mr. Solomon, Q.C: In
February, 1890, he knew Lawrence and Coronel
were interested in Ward's concession, but he did
not know to what extent.
Sir T. Upington then proceeded to address the
Court, and contended that both Marais and
Weasels must have known that Coronel and
Lawrenoe were deeply interested in Ward's con-
cession, and that this knowledge was sufficient
notice whether the actual nature of their interests
was disclosed or not.
Counsel had not concluded his argument when
the Court adjourqed,
167
SUPREME COURT.
THURSDAY, JUNE 26.
[Before the Chief Justice (Sir J. H. DR
ViLLiBRS), Mr. Justice Smith, and Mr.
Justice Buchanan.]
CORONEL V. WABD AND WESSELS AND
LAWRENCE V. WABD AND WESSEL8.
The hearing of this case was resumed. The
plaintiffs were again represented by Sir T. Uping-
ton, Q.C., Mr. Solomon, Q.G., and Mr. T. L.
Graham ; the defendant Ward by Mr. Juta and
Mr. Jones, and Weasels by Mr. Searle.
Sir T. Upington continued his argument for the
plaintiff, and said that by the agreement of the
10th February, 1891, all former rights of the
plaintiffs were continued. He contended that the
Court had already laid down that the non-payment
by a purchaser of the purchase price was not
sufficient reason for the dissolution of a contract,
the onus being on the seller to sue for completion
of the purchase.
Mr. Juta, for the defendant Ward, submitted
that the plaintiffs had acquiesced in the rescinding
of the oontraot. He quoted the case of Stewart v.
Ahnelt (7 Juta, 1 17). In that oase, which was a Bale
of property at Sea Point, the plaintiff paid part of
the purchase price, and was warned that if he did
not complete the transaction by a certain time the
contract would be considered at an end. The
Court held that the subsequent behaviour of Stewart
was such that he had no intention to complete the
sale, and the case went against him, though
Ahnelt was ordered to pay back to Stewart money
he had paid on account when the promissory note
fell due. Coronel and Lawrenoe were warned
that the agreement would be cancelled, but they
were utterly unable to pay the money, and so
acquiesced in the cancellation. Ward's evi-
dence on that point was really not
contradicted, and ought to be taken as
correct. At the time plaintiffs alleged these
transactions occurred no one either in Griqualand
West or in England would have anything to do
with the mine, but now that diamonds had been
found everyone wanted a share in it. The
evidence was dear that Lawrence's story that he
had paid his £2,600 was not suoh as the Court could
accept. Lawrence's own letters proved that he had
not paid the £2,500. He contended most strongly
that Weasels had the right to cancel the agreement
when the promissory note fell due and was not
paid. The behaviour of Lawrence was all along
that of a man who believed that the concession had
lapsed upon non-payment of the promissory note.
Ward wrote to him several times at the end of
1890, when the note was maturing, and the merest
tyro, a very child, would at once have replied
that he had no further liability, he having
paid his £2,500, yet the Court was
asked to believe that an experienced bank
manager was so innocent of ordinary
business dealing as never for a moment to deny
a liability he alleged he had not. It was not until
1891, when the diamonds were discovered, that
Lawrence suddenly awoke to the fact that he was
a sharer in the interests of Ward. At the time
Ward was under the impression that unless the
£2,000 were paid the concession would be lost.
Lawrence said that he had £1,000 to spare,
yet the Court had it that he never once
offered at that time to discharge his liability, though
he was told the concession was in danger.
Mr. Searle, in addressing the Court on behalf of
the defendant Weasels, split up his argument into
three heads. The first question, he said, was as to
whether the right granted to Ward was an indi-
visible one, or divisible, and capable of being
split up so as to bind the guarantor Weasels to
these other parties. If it could be so split up, was
sufficient notice given by Lawrence and Coronel
to bind Wessels to them ? If the Court were
against him on both these points, he contended
that Wessels had a perfect right to cancel the
agreement upon non-fulfilment of the conditions,
and failure to pay the promissory note. It was
clear that the plaintiffs never for a moment
imagined they had a right against Wessels. They
set up Ward and Ward only. Marais
had never for ene moment acted in any
important matter, like this of the con-
cession of the Wesselton Mine, without in the
first place consulting Wessels, who all along kept
himself aware of the progress of the whole
transaction. The position taken up by Marais, in
his capacity as the representative of Wessels, had
been during the whole time that Wessels would
only recognise Ward in the transaction.
Counsel had not concluded his argument when
Tue Court adjourned.
SUPREME COURT.
FRIDAY, JUNE 26.
[Before the Chief Justice (Sir J. H. DE VILLIEB8,
K.C.M.G.), Mr. Justice SMITH, and Mr.
Justice Buchanan.
CORONEL V. WABD AND WESSELS AND
LAWRENCE V. WARD AND WESSELS.
The hearing of this case was resumed. The
plaintiffs were again represented by Sir T.
168
Upington, Q.C., Mr. Solomon, QC, and Mr.
T. L. Graham ; the defendant Ward by Mr. Juta
and Mr. Jones, and the defendant Weasels by Mr.
Searle.
Mr. Searle continued his argument for the
defendant Wessel*, and said that all the parties
interested clearly understood that non-payment of
the promissory note meant cancellation of the
agreement. As a fact Wessels did at one time
terminate the agreement, and acted perfectly
bona fide in doing so. The whole thing had been a
speculation on the part of these persons, and he
could not understand upon what principle Wessels
was expected to return to Ward the moneys he had
paid, seeing that he had the consideration provided
for by his contract. He quoted " Gau v. McDonald "
(Buohanan, 1874, 22), as showing that a joint
venture in a diamond-mine was lacking in the
essentials of a partnership.
The Chief Justice then gave judgment. His
lordship said that there was really no difficulty in
this case so far as it affected the defendant Ward,
who had entered into the contracts of January,
1890, with the two plaintiffs. By each of those
contracts he had ceded one-fourth of his rights
and interests in the agreement with Wessels to
each of the plaintiffs. The consideration given by
the plaintiff Lawrence was the payment of £2,500
and the consideration given by the plaintiff Coronel
was the payment of £500 in cash and a promissory
note for £2,000. Now it had been strenuously
argued on behalf of Mr. Ward by Mr. Juta that
there waB a collateral engagement between the
parties, by virtue of which the plaintiff Lawrence
was really a co-debtor upon the promissory no*e.
He did not think, even if counsel had suoceeded in
proving that collateral arrangement, that would
make any difference in the case, for such an
arrangement could not in his opinion be allowed
to influence the Court in regard to the
present case. The collateral arrangement was
dearly for the purpose of imposing upon the
Cape of Good Hope Bank, to the knowledge of
Ward, and in his opinion Ward could not take the
advantage of the imposition to which he was a
party. In his opinion the two plaintiffs, Lawrence
and Coronel, stood on exactly the same footing.
They had each paid part of the money due to
Ward. One had paid £2,500, and the other £500.
Whatever the private arrangement between Coronel
and Lawrence was, the defendant Ward was not
concerned. The Cape of Good Hope Bank might
have something to say to the action of their manager
Lawrence, but Ward had nothing to do with it ;
he having got his money was bound by his agree-
ment. So far, therefore, as the plaintiff Lawrence
was concerned, he had fully complied with the
terms of his contract. He had paid his £2,500,
and now claimed his share of the property. With
regard to Lawrence, it was said that his whole
subsequent conduct showed that, although there
was not an express cancellation of the contract,
yet there was an implied cancellation, and the
case of Ahnelt was referred to, but, as he pointed
out, the case of Ahnelt was entirely different
to the present case. In that case there had been a
small payment of £82, but notice was given that
unless the remainder of the purchase price were
paid the sale would be put an end to. No answer
was given to that, and thereupon a fresh Bale of
the property was made. The Court held that no
damages could be recovered, inasmuch as the
defendant had been left under the impression that
there had been an implied cancellation of the
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